Part 2: The Limited Resources Divorce
As I explained in my last blog, a family where one party is just seeking custody, can go to Family Court. If a person just seeks child support or spousal support, he or she can go to Family Court. If, however, a party is asking for a divorce, that party must file an action for divorce in a Supreme Court. If he or she needs a judge to help divide pensions, assets or liabilities, he or she must file in the Supreme Court as well.
The question that arises is:
What happens when somebody wants to obtain a divorce, but has very limited resources and can’t really spend money to hire an attorney to handle the entire case in the Supreme Court?
There is a creative way to deal with this situation. A person can file a summons to divorce in the Supreme Court, but before that, they can obtain an order of child support and an order of custody in Family Court. They can obtain those orders in Family Court by representing themselves. If these are the only issues that need to be addressed and they don’t have any property that needs to be divided or debts that they need to be allocated, then they can file for an uncontested divorce and simply ask the court to “incorporate by reference” the existing orders of custody, child support and spousal support that were already obtained in Family Court. In this way the orders in Family Court become part of the overall divorce order when they file in the Supreme Court.
Because it is an uncontested divorce, they ordinarily pay a flat fee to their lawyer which is significantly lower than a retainer representation in a contested matrimonial action. In that case, you have two lawyers trying to negotiate all issues include child support, custody and the decision on spousal support. Taking care of those things in Family Court by representing themselves, allows a couple to save a considerable amount of money in the overall process.
Of course, the best way to save emotional and financial stress during the divorce process is to stay out of court altogether and resolve all issues outside of litigation, through mediation or the collaborative process. However, if that is not possible and resources of the parties are very, very limited, then first getting orders in Family Court and then using and incorporating them into an uncontested divorce in Supreme Court is one vehicle through which a person can keep control over their limited resources and still get a divorce.
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