Anybody who has gone through a divorce can attest to its challenging nature, which is frequently characterized by powerful emotions and strained nerves. However, some divorces are amicable, so you might be able to obtain a divorce without any acrimony.
Whatever the circumstance, it’s critical to have a basic understanding of the New York divorce procedure before taking any action. This is especially true in divorce cases where minor children are involved.
Serving your partner with a summons and either a petition for divorce or a summons and notice of the divorce action is the first step in starting a divorce action. “Serve” typically refers to making a formal delivery of the summons to your spouse in person.
A different method of service might be permitted by the court if personal delivery is not possible. You submit the summons and the proof of service to the court after serving your spouse.
If you make a due diligence effort to locate your spouse but are unsuccessful, you may still file for divorce even if you do not know where they are living. Your attorney may get authorization from the court to publish a court summons of the divorce case in a newspaper. The court might let you get a divorce by default if your spouse doesn’t file for divorce in New York.
There are several routes you can use to file for divorce:
- You can go the conventional path and get legal counsel right away to represent you.
- Using an online divorce service, which has become more and more common, is an option. These businesses will offer forms and essentially guide you through the divorce process. However, you should be aware that these firms often only handle “uncontested” divorces, which means you have already amicably or through mediation settled all of your marital disputes.
- By using the forms offered on the New York Courts website, you can decide to conduct the divorce yourself. If you choose to go down this path, it is crucial that you are aware of New York’s regulations, including where to submit your complaint and what to do next.
Qualifying for Divorce
Prior to actually completing or filing any divorce in New York, you must be a legal resident of New York. In general, you’ll meet this requirement if you were married in New York and either you or your spouse continuously remained in the state for the year before filing for divorce, or if either spouse continuously stayed in the state for two years prior to filing.
A valid reason (or “basis”) for divorce is also required. Both “fault” and “no-fault” reasons for divorce are acceptable in New York.
If you choose to divorce your spouse in New York on the basis of blame, you will allege that they committed wrongdoing like cruelty, infidelity, or abandonment. No-fault grounds, on the other hand, don’t place the responsibility on either spouse. The “irretrievable disintegration of the marriage” is the no-fault ground that is most frequently claimed in uncontested divorces in New York. This basically implies that you and your spouse do not get along and that there is no realistic chance of it changing in non-legalese.
How To File For Divorce in NY
Be willing to pay the different New York court filing fees when you end the relationship (which, as of 2021, total $335 and are always prone to revision). You may submit an application for a fee waiver if you are experiencing financial difficulty.
You must complete and submit the following documents in order to begin the divorce process:
- Summons with a verified complaint, summons with notice
- Automatic Orders Notice
- Notice Regarding the Maintenance of Health Insurance Coverage
- Any settlement agreement you may have.
Both the summons with notice and the summons and verified complaint (referred to as “relief”) must contain the grounds for the divorce as well as any other concerns you wish to have resolved. This covers issues including child custody, child support, property distribution, and spouse maintenance (“alimony”).
The completed paperwork (together with two copies) should be sent to the Supreme Court clerk’s office in the county where the divorce is being started (usually, the county where either you or your spouse resides). Your case will be given an index number by the clerk, which you must write down on all of your divorce documents.
Meet the Residency Requirements
- The past 24 months have been spent consistently by at least one spouse in New York State.
- At least one spouse must have lived in New York State continuously for the previous 12 months and still be a resident there at the time the divorce action is filed in court. Your marriage ceremony was done in New York State.
- You and your partner have lived together and in New York State as married individuals for the past 12 months, with at least one spouse still residing there at the time; the divorce proceeding is filed with the court.
- At least one spouse has lived in New York State continuously for the past 12 months, and the divorce’s legal grounds were experienced there.
- When the divorce action is filed in court, you and your spouse are both residents of New York State, and the divorce cause (legal grounds) occurred in New York State.
Grounds for Divorce in New York
You must provide evidence of your grounds for requesting a divorce in addition to meeting the residence criteria. In New York, there are seven legal grounds for filing for divorce. Which are:
You and your spouse’s relationship has been irreparably damaged for at least six months, which indicates that it cannot be fixed. The court cannot grant you a divorce on these grounds until property, debts, child custody, visitation, spousal support, and child support have been resolved (where both parties are in agreement) or decided by the court.
Inhumane and cruel treatment
Your spouse treated you in a “cruel and inhumane” manner. This indicates that if you keep living together, your physical or mental health is in jeopardy. However, if your husband opposes, you cannot get a divorce for this reason if the most recent inappropriate behavior occurred more than five years ago.
For at least a year, your partner “abandons” you. This indicates that your partner has left you or has expelled you and has no intention of coming back.
Suppose your partner spends three or more years in prison. You cannot, however, file for divorce if your spouse was freed more than five years ago. Furthermore, the imprisonment must have begun after your marriage.
Your partner has an affair. If you, however, push your partner to do so, pardon your spouse by engaging in sexual activity with them after learning of the adultery, or engage in adultery yourself, this will not be grounds for dismissal. If it has been longer than five years since you found out about the infidelity, you cannot also file for divorce on the grounds of adultery. You need a witness because you cannot testify alone to prove adultery.
Resolution of Separation
You and your spouse have not cohabitated for at least a year as a result of a court-issued “Decree of Separation” or “Judgment of Separation.” You must abide by each and every requirement of the ruling or decree. A Judgment of Divorce is uncommon since it needs evidence comparable to that required for divorce. Most people bypass the judgment and start their divorce right away.
You and your partner have lived apart for at least a year as a result of a documented “Agreement of Separation.” If you reside in New York, you and your spouse must both sign this agreement in front of a notary, and the arrangement must adhere to certain legal requirements. It is best to have a lawyer evaluate the agreement since if those guidelines are not followed, the contract is void. All of the terms of the agreement must be followed.
Also, read: Grandparent’s rights in NY.
Serve the Forms to Your Spouse
Following 120 days of submitting the preliminary divorce documents, you must deliver a copy to your spouse.
The documents must be personally served on anyone other than you. Any resident of New York who is at least 18 years old, isn’t actively engaged in the separation, and lives in the state where you and your spouse are divorcing may deliver the divorce petition. An “Affidavit of Service” must be submitted to the court by the person who served the documents.
If your spouse lives outside of the state of New York, there are distinct rules for service. Additionally, if you’ve looked but haven’t been able to locate your spouse, you can ask the court to allow a different way of serving papers (such as publication in a newspaper).
Your Spouse’s Response
When your spouse is individually presented with the separation petition, they have 20 days to answer (or 30 days after out-of-state service).
Whether the matter is disputed or uncontested will determine the type of answer.
- Your partner must sign and return an “Affidavit of Defendant” if the divorce is uncontested.
- Your partner will submit an answer with an opposition to a claim made in the petition in a contested divorce.
You can ask for a unilateral divorce ruling if your partner doesn’t answer in a timely manner.
Get Your Case on the Court Calendar
Getting your case scheduled in court is the next step you must take if your spouse consents to the separation or lapses by not responding.
You must complete the other necessary forms in order to schedule your divorce case (for more information, read the New York Courts’ publication “Introduction to Uncontested Divorce Instructions”). Once the required paperwork has been completed, you can file it with the clerk.
Forms, Forms, and More Forms for Divorce
Your task is not done once you have submitted and delivered the preliminary forms mentioned above. Before you can finalize your divorce in New York, you’ll need to file a veritable boatload of specific documentation. According to your county, the conditions could change.
According to the court’s website, you might also need to provide the following documents:
- Sworn Statement of Removal of Barriers to Remarriage
- Affirmation (Affidavit) of Regularity
- Annual Income Worksheet
- Maintenance Guidelines Worksheet for divorces commenced on or after 1/25/16
- Child Support Worksheet
- Support Collection Unit Information Sheet
- Qualified Medical Child Support Order
- Judgment of Divorce
- Part 130 Certification
- Request for Judicial Intervention and Addendum
- Notice of Entry
- Affidavit of Service of Judgment of Divorce
- Certificate of Dissolution of Marriage
- Sworn Statement of Barriers to Remarriage, and
- Divorce and Child Support Summary Form.
Property and debts are divided between you and your partner during a divorce. Each side will often maintain a distinct property, which is an asset:
- Obtained before marriage, by inheritance, or as a gift from a non-spouse,
- Which are damages for individual injury,
- unless the development is partially attributable to the other party’s contributions or efforts, obtained in consideration for, or the rise in the value of, part of the estate
- A formal agreement between the parties, designated as a personal residence.
All other assets belong to the couple. Without a settlement, the judge must divide the marital estate “equitably,” taking into account the accompanying:
- Earnings and assets of each party at the moment of marriage and the application date
- The length of the marriage, as well as the age and health of each spouse
- The requirement for a custodial parent to live in or own the marital home and use or own its belongings,
- The loss of pensions and intestate succession upon divorce.
- The loss of insurance coverage following a divorce,
- Any maintenance award (alimony),
- Any reasonable entitlement to, ownership in, or explicitly or implicitly assistance provided to the accumulation of marital assets by the person without title, such as services rendered as a partner, parent, wage earner, and homemaker, as well as to the other party’s profession,
- The nature, whether liquid or not, of all marital assets
- The probable future monetary situations of each party,
- The unavailability of appraising each constituent property or any participation in a firm, or the difficulty of doing so,
- The economic advantage of maintaining such asset or interest unaltered and free from any demand or infringement by the opposing party.
- The tax repercussions for each party,
- Either spouse’s irresponsible spending of resources,
- Any conveyance or obligation without just compensation made in anticipation of divorce
- Anything else the court deems to be fair and appropriate.
Additional Considerations for Divorce Filing
Your cash flows, as well as other financial details, may be requested on some of the divorce-related paperwork you might just have to fill out. Gathering this corroborating evidence in preparation will help you to be as thorough as possible; doing so will save you from having to search for it while you fill out the paperwork.
There is still another thing to think about. The majority of this article has been devoted to uncontested divorce in New York. You can see that the procedure is difficult even when there isn’t anything to argue over. But contested cases can take anything from several months to well over a year to resolve since the sophistication rises considerably when there is controversy on one or even more topics.
The point is that although it is feasible to file for divorce on your own in New York, it may not always be the wisest course of action. Even in an uncontested divorce, using an online divorce service or paying a lawyer may be worthwhile for the peace of mind that comes from the experience you’ve correctly filled out all the paperwork. Additionally, you should at the very least seek legal advice before signing a consent decree if your situation or financial condition is difficult.
Obtaining legal counsel is almost essential if you and your spouse can’t come to an agreement on the issues—especially if you have young children, assets worth, or your partner has indeed engaged a lawyer. You would need to become familiar with all of New York’s divorce rules, including the Rules of Evidence, in order to navigate the divorce proceedings in a contentious case. That’s a big task for someone who isn’t a lawyer. A competent divorce lawyer will be familiar with the nuances of the law and the workings of the court system.
Keep in mind that you’ll probably have to deal with the outcomes of your case long after the divorce is final. There’s no assurance you’ll be able to fix a mistake if you find out later that you made one. Therefore, it pays to do it properly the first time.
If you do choose to hire a lawyer and how difficult your divorce is will determine how much your divorce will cost in New York.
In New York, the preliminary filing fee for a divorce is $210. (as of 2020). As the procedure progresses, there are also added expenses like notary services and mailing fees. You can be eligible for a fee waiver if your income is insufficient to cover the fee.
New York has no waiting period before filing for divorce, in contrast to other states. Therefore, you can seek a dissolution without having to prove that you have been apart for a certain amount of time.
In New York, there is no waiting time; it typically takes 3 months to file the necessary paperwork with the court for a divorce that both parties have agreed upon.
The simplest way to expedite your divorce proceedings in court is for the respondent to sign an affidavit of opposition waiving service. You will need to hire a court summons to deliver a copy of the summons and petition if your husband doesn’t sign the affidavit.
When filing for divorce in New York, the majority of people are likely to try to claim an irretrievable breakdown, commonly known as a “no-fault” divorce. In 2010, this became the first reason for divorce in New York. However, it is not the only route to obtaining a divorce.
Conversion divorces enable you to file for divorce using a Divorce Agreement that has been in effect for a full year. In essence, a divorce is created from the Separation Agreement. Even if you have other reasons for wanting a divorce, a Separation Agreement can speed up and simplify the process.
A New York court has the authority to resolve your divorce case based on residency criteria. A divorce case can only be decided by a New York court if at least one of the spouses is a resident of the state. The majority of the time, before attempting to obtain a divorce, one of the partners must have resided in New York for at least a year.
If you and your spouse can agree on how to divide the assets, pay support, and settle any debts, you won’t need a trial, which takes much longer and usually costs you more money. Prior to filing for divorce, try to obtain orders from Family Court about child support and custody. Prior to taking it to court, it’s crucial to try to reach a settlement with your husband as much as you can. Get assistance from a domestic abuse advocate if your partner is abusive before attempting to discuss these crucial issues.
Individuals may be hesitant to get a divorce for financial reasons in addition to emotional ones. If you and your spouse decide to end your marriage, the court will distribute your assets even if your partner isn’t on board. In order to be covered by your health insurance or to be eligible for Social Security retirement benefits, your spouse might wish to keep the marriage going. You can obtain a spousal support judgment from Family Court while you are still married, and even if you don’t seek a separation, your husband must continue to support you for the duration of the marriage.
If you are presented with divorce proceedings, it is crucial for you to reply in writing to the judge and your partner unless you already have a signed Divorce Agreement that will be incorporated into the divorce. Typically, you have 20 days to deliver your written response or an Answer. If you can, you ought to hire an attorney to assist you. If you make less money than your partner, you can ask the court to order them to pay for your attorney.