Anyone who has been through a divorce will tell you it's a difficult process, typically fraught with intense emotions and frayed nerves. Some divorces are amicable, however, and you may be able to get a divorce without much conflict. Whatever situation you find yourself in, it's important to understand the New York divorce process (at least the basics) before you take any action. This is especially true for divorces involving minor children.
The following information is intended to help you navigate the divorce process in the Empire State. Before filing for divorce, however, it may be in your best interest to consider a collaborative divorce.
How to File for Divorce in New York
Wading through pages of statutes (laws) or procedural rules is sometimes necessary to understand what you need to do, but it also helps to have resources in one place, and in plain English. Here's what you need to know and the steps you need to take to get a divorce in New York.
1) Meet the Residency Requirements
For New York courts to take your case, you must show that either you or your spouse have lived in New York for at least a year before you filed for divorce.
2) Know the Grounds for Divorce in New York
In addition to the residency requirements, you also have to show your reasons for getting a divorce. New York recognizes seven grounds on which you can ask for a divorce. These are:
- Relationship has been broken down for at least 6 months (usually called a no-fault divorce)
- Inhuman and cruel treatment. In these cases, a spouse is emotionally or physically in danger and it is unsafe for them to continue living with their partner.
- Abandonment. To use this ground, the plaintiff must show that their spouse has abandoned them for at least one year.
- Adultery during the marriage
- Imprisonment of a spouse for three or more years in a row after the marriage began
- Separation. Spouses must sign and file a separation agreement and live apart for one year.
- Judgment separation drawn up by the court. The spouses must live apart for one year
3) Gather the Information You Need to Complete the Forms (Uncontested Divorce)
A divorce is considered uncontested if one of the following two things occur:
- You and your spouse agree on the terms of divorce, including financial issues and, if you have children, issues concerning custody and child support, or
- Your spouse fails to respond to your complaint.
To fill out the forms for an uncontested divorce, you will need a number of things, including:
- Your name and address
- A copy of your marriage certificate
- A copy of any agreement that you have reached with your spouse like a settlement agreement
- A list of the property you and your spouse jointly or separately own, and debts you and your spouse have incurred.
- A copy of any Orders for Protection, if applicable
4) Prepare and File the Necessary Forms
New York courts require divorcing parties to fill out a relatively large number of forms. These forms vary depending on whether you have children.
After you make sure your forms are correct and complete, you need to file what is called a Summons and Complaint with your County Clerk's Office. Some courts allow you to file your papers over the internet using NYSCEF. Check the e-filing county list to see if your county has an e-filing system.
5) Serve the Forms to Your Spouse
You must ensure that your spouse knows of the divorce case. Thus, you need to make sure they get all the divorce papers in person. This process is known as service. Service must be done within 120 days of the filing date.
Note that you, personally, can't serve your spouse. Rather, you must assign another person who is a resident of New York and who is at least 18 years old to serve your spouse.
6) Response by Your Spouse
If your spouse agrees to the divorce, they must return a completed form to you within 40 days of receiving your papers. If your spouse fails to respond, then it means your spouse has defaulted.
But if your spouse files an answer disagreeing with anything in your divorce papers, then the divorce is no longer uncontested.
7) Get Your Case on the Court Calendar
If your spouse agrees to the divorce or defaults by failing to respond, the next thing you need to do is get your case on the court's calendar.
In order to get your divorce case on the calendar, you will have to fill out the remaining applicable forms (see the New York Courts' document "Introduction to Uncontested Divorce Instructions" to learn more). When you've completed the necessary forms, you can file them with the clerk.
If approved by the judge, they will issue a divorce judgment.
What If Your Spouse Contests (Contested Divorce)?
If your spouse disagrees with anything in your divorce papers, then the divorce will become a contested divorce. In these cases, the court will likely make decisions on the issues you and your spouse disagree on.
Child Custody Issues in a New York Divorce Case
Custody issues will arise if you and your spouse have minor children. The two main issues here will be:
- How the children will divide their time between the parents, and
- Who will make legal decisions concerning the children.
The procedure for determining custody will be relatively straight forward if you and your spouse have an agreement on how to handle custody issues. In such cases, the judge will likely approve your agreement and include it in the divorce order, unless it's not within the best interests of the child.
If, however, you and your spouse don't agree on custody, the judge will hear arguments from both sides and decide the issue based on the best interests of the child.
Alimony in New York
Alimony is financial support that one spouse pays to help maintain the other spouse's standard of living. The sum is ordered by the court after taking several things into consideration.
Some of the things the courts consider for spousal support include:
- The financial resources of the parties
- The job skills and the job market in their profession
- The time it takes the dependent spouse to get education or training to increase their earning ability
- The ability of the independent spouse to pay support without compromising their own financial obligations
- Custody of any children
- Any child support the parties pay
Child Support in New York
Child support ensures the children's financial well-being is protected after the divorce. If the parents agree on child support payments, they just have to submit the agreement for the court's approval. The court will generally accept their agreement as long as certain requirements are met.
If the parties don't agree, the court will use the state's child support guidelines to determine child support.
How Long Do You Have to Be Separated Before You File for Divorce in New York?
Unlike other states, New York doesn't have any waiting period before filing for a divorce. That means you don't have to show you have been separated for a period of time before you ask for a divorce.
How Much Does It Cost to File for Divorce in New York?
The cost of getting a divorce in New York depends on whether you decide to have an attorney and how complicated your divorce is.
The initial filing fee to get a divorce in New York is $210 (as of 2020). There are also additional costs like notary services and mailing fees as the process goes on. If you don't have enough income to pay for the fee, you might qualify for a fee waiver.
Do You Need an Attorney to File for Divorce in New York?
Having an attorney will ensure you have the best outcome, especially if your spouse contests. But that does not mean you can't file for a divorce by yourself. The New York Unified Court System provides the resources you need to file for divorce without using an attorney.
However, if your spouse disagrees with the divorce or significant issues in the divorce, it is recommended that you speak to an experienced family law attorney.
How to Find a Divorce Attorney in New York
As you can see, the New York divorce process is rather complicated. While some divorces are relatively simple, divorces involving children, complicated property division issues, or other disputes generally benefit from a legal professional's guidance.
If you need help with your divorce, consider contacting a local divorce attorney. Findlaw.com's directory provides access to lawyers across New York state, including lawyers in New York City and Buffalo.