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Drafting petition to access decedent's divorce decree

Discussion in 'Estate Administration & Probate Court' started by D. Wallow, Nov 7, 2018.

  1. D. Wallow

    D. Wallow Law Topic Starter New Member

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    Jurisdiction:
    New York
    Am in process of asking court to authorize me as administrator for sibling's estate but court has asked for decedent's divorce decree which is not available to me with out a court order. The divorce is almost 40 years ago and my other options to secure it are limited. What form does such a petition take and do I also have to draft the order which the judge will ultimately sign?
     
  2. army judge

    army judge Super Moderator

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    You should retain counsel to represent you in this matter.
    The attorney's fees can normally be reimbursed by the estate.

    This is something you don't want to do yourself or by seeking information from anonymous people via the internet.
     
  3. adjusterjack

    adjusterjack Super Moderator

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    If I remember correctly, the "decree" is public record and a copy may be obtained from the court where the divorce was finalized. It's the divorce "certificate" from the Dept of Health Vital Records that requires a court order for anybody but the spouse.

    Why there is such a distinction in NY is beyond me but if you know what county your sibling was divorced in, you may be able to get a certified copy of the decree there.
     
  4. D. Wallow

    D. Wallow Law Topic Starter New Member

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    It's not totally clear but it appears that the local county can provide a "certificate of disposition" without a court order, which might satisfy the judge. But everything takes time and meanwhile her apartment is sealed and large monthly rent charges continue to accrue. I am trying to understand the various avenues available in the event that the judge wants more.

    Part of my inquiry is the desire to understand the complexity, or lack thereof, of the process for petitioning the court and securing an order for the divorced decree. I'm not committed with following thru on it personally but I'd like to understand the nuts and bolts of it and what a petition and subsequent order would look like. Any insight would be appreciated,
     
  5. adjusterjack

    adjusterjack Super Moderator

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    Are you saying that the surrogate court won't issue you "letters testamentary" without evidence of your sibling's divorce?

    Yesterday I suggested you go to the local court, today you are apparently not on your way to the court. The longer you delay going to the court (while trying to "understand" things) the longer it takes to solve your problem.
     
  6. zddoodah

    zddoodah Well-Known Member

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    Why? Was the divorce case file sealed for some reason? When you learned that the decree was not available, you informed the court that asked you to obtain it, right? How did the court respond when you did that?

    What does "such a petition" mean, and why do you think there is a "form" available for it?

    If you're seeking to be appointed as the executor of someone's estate, you should hire an attorney to represent you in that capacity. It is not, IMO, a good DIY project.

    Then you need to petition the court for an emergency order to allow you access.

    Huh? Because he/she took 5 minutes to post at 7:23 a.m. local time? LOL
     
  7. D. Wallow

    D. Wallow Law Topic Starter New Member

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    Three weeks ago we filed Petition for Letters of Administration along with other require documents. This week the Court has requested additional information most of which was easily obtainable except for my sister's divorce decree from the 1980's. In NYS the parties and their counsel can request copies from the county and/or the State but a court order is required for anyone else. At this point we don't even know who the attorneys were. Court action is at a stand still until we supply the decree, ask the Court to alter its request or seek a court order.

    Our attorney's are reluctant to petition the court for a court order because they believe it could stretch out to a 1 to 2 month process. We could try and contact her ex but that is the last thing we want to do. Our attorney has not offered another option.

    We are ordering the records with the expectation that the clerk can and will provide us with the attorneys of record who we might be able to contact. There is also a chance that the clerk can provide a document verifying the divorce with out provided the actual decree.

    During the week while waiting for the records to arrive I wanted to get a more detail understanding of what a petition for a court order would look like in part because we might have to go that route.
     
  8. army judge

    army judge Super Moderator

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    You have hired counsel to assist you.

    You should work only with your counsel as you traverse through this issue.

    Asking strangers what you might do could cause you great grief.

    I wish you the best of luck as you maneuver through these impasses.
     
  9. D. Wallow

    D. Wallow Law Topic Starter New Member

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    My first response is to try and provide the Court what it has requested. If it proves too difficult I may have to seek a court order or ask if the Court if it would modify its request possible providing us entry into her sealed apartment so maybe we could find her decree.

    We asked attorneys about seeking just an order to allow us into her apartment to search for a will but it was recommended that we should apply for administration of her estate to gain access.
     

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