Requirements for divorce in New York
The New York law recognizes no-fault and fault-based grounds for divorce.
Unlike most states that have a simple residency requirement, you can file for divorce in New York if you meet any one of the following requirements:
If your spouse and you were married in New York and either one of you at least has lived in New York for a minimum of 1 year before filing for divorce.
Your spouse and you have lived in New York as a couple and either one of you at least has lived in New York for a minimum of 1 year before filing for divorce.
The grounds of divorce have occurred in the state and either one of you at least has lived in New York for a minimum of 1 year before filing for divorce.
The grounds of divorce have occurred in the state and both your spouse and you have lived in New York when the process of divorce started.
Either your spouse or you have been a resident of the state for a minimum of 2 years immediately before filing for divorce.
There is no waiting or cooling-off period in New York.
Grounds for a NY divorce
The fault grounds for divorce in New York include:
Abandonment a year or more
Imprisonment for 3 years or more
Cruelty or inhuman treatment like physical or mental abuse
In the case of a no-fault divorce, there is no need to assign any blame on your spouse and there is no need to give a specific reason for the breakup.
No fault New York divorce can be based on any of the grounds as follows:
Your marriage has suffered an “irretrievable breakdown” for at least 6 months i.e. your spouse and you cannot get along any more.
Living separately and apart for a year or more after a judgment of legal separation.
Living separately and apart for a year or more after a separation agreement.
Step 1: Starting a New York divorce
Documents Needed for Filing for Divorce
Some of the documents required for filing a divorce in New York areas below:
Summons & Complaint or Summons With Notice: This is served on the defendant to verify that he/she has received the divorce documents which have been filed.
Continuation of Healthcare Coverage Notice
Notice of Automatic Order: This has a list of all the court orders which restricts both spouses from taking decisions until the divorce is finalized.
Settlement Agreement (in case you have an agreement with your spouse): Used to negotiate all the property and child custody details before the trial.
If you are filing for divorce in New York and your divorce is an uncontested one, then you can use the following forms:
If you do not have children under the age of 21 years and your marriage has ended for a minimum of 6 months, then you can make use of the DIY uncontested Divorce Program to complete your divorce papers.
If you have children who are under 21 years of age, then you must use the Uncontested Divorce Packet.
Filing Your Forms
Once you have signed the papers and the forms have been notarized, you must file them with the county court clerk along with the court fees. The county clerk’s office is where all the case files of the particular county are held for the supreme court. Some counties allow you to file your divorce papers electronically over the internet via the NYSCE (New York State Courts Electronic Filing) system. You can check the county list to see if you can e-file your papers.
These are just a few of the forms, for a complete list of forms required for an uncontested divorce, here.
Step 2: Serving your spouse in NY
The state of New York requires that the defendant must be informed about the divorce in person and so, the “Summons and Complaint” or “Summons with Notice” must be delivered personally to the defendant. If you are unable to locate your spouse or don’t know where he/she is, then you can check with the clerk’s office at the supreme court for information about the alternative ways of serving your spouse.
The plaintiff has a period of 120 days to serve the defendant from the day the “Summons and Complaint” or “Summons with Notice” was filed with the clerk at the county courthouse.
The plaintiff cannot serve the papers to the defendant and must ask any person over 18 years to serve the papers.
The person serving the defendant should complete the “Affidavit of Service”, which is proof that the papers were served to the defendant properly.
Step 3: Contested or uncontested NY divorce?
Contested New York Divorce (High Cost)
In a contested divorce both spouses do not have an agreement on some or all the issues of the divorce. So, in this case, there will be a trial, where the judge will hear the testimony of the witnesses and decide on the various issues. Contested divorces usually take a long time and you need to make repeated appearances in the court and it is also expensive.
Uncontested New York Divorce (Low Cost)
In the case of an uncontested divorce, there is an agreement between your spouse and you about all the issues such as property division, child custody and support, alimony, etc. As per the New York law, your spouse and you must also agree on the reason or grounds of your divorce. And, since there is an agreement on all the issues between your spouse and you, there is no need for the judge to have a trial.
Also, you must state that your marriage is broken irretrievably and that there are no chances of your spouse and you getting back together. Usually, “irretrievable breakdown” of marriage is the common grounds that both spouses agree upon in the case of an uncontested divorce. Also, a divorce is considered as uncontested when a spouse files for divorce and the other spouse does not participate in all the divorce.
Step 4: DIY or hire lawyer?
DIY New York Divorce
If your divorce case is straightforward, i.e. you don’t have too many assets that must be divided, you do not have children from the marriage, there is no alimony to be paid or received and your spouse and you agree on all issues, then you can represent yourself and handle the divorce on your own.
You can use the LawHelp interactive program which will require you to answer questions, based on which the program will fill out the New York state approved divorce forms and once you complete the program and submit your answers, your final documents will be generated, which you can use to file for divorce.
You are eligible to use the DIY program if:
You do not have a lawyer and you are a court user.
You are a legal services provider.
You are a pro bono lawyer.
You belong to a low-bono program i.e. a reduced fee program and are authorized to make use of the DIY forms.
However, if the issues pertaining to your divorce are complex and you cannot resolve them on your own, then it is best to hire a family law lawyer who can help you with all the divorce laws. If your case is complicated and you’re not sure about representing yourself and protecting your rights, then it is a good idea to consult with a professional who is experienced.
Online Divorce Service
If you’re not really sure about how to go about the process of filling the papers to file for divorce and you don’t want to employ an attorney, then you could use an online divorce service to help you. Our favorite provider is 3StepDivorce and you can get started for $299. You will need to answer questions regarding your case and the online service will guide you step-by-step and will provide you with the details to file your divorce papers. Once you fill out all the details, your final documents will be generated, which you can print out, reviewed, and all you need to do is sign and submit with the clerk at your local court.
If both divorcing parties are unable to come to an agreement on the main issues of the divorce like property division, child custody and support, and alimony, then the case will go to trial and will be heard by a judge, who will then resolve all your issues. Both spouses must hire a divorce attorney in the case of a divorce trial, who will present your case, witness testimonies, etc. in the court and fight on your behalf. Usually, a divorce trial takes a long time and is also expensive.
Step 5: dealing with The big issues
New York Property division
In a New York divorce, the marital property is usually divided equitably, i.e. the property and debts that were acquired during your marriage are divided on what is considered fair and not necessarily on an equal basis. Your income, home and personal possessions are all considered as your property.
While dividing the property, the court will consider your spouse’s and your financial circumstances in the future, tax circumstances of both spouses, value of the assets or any business interest and the need for the custodial parent to live in the family home. The court may also divide the separate property of both spouses if it believes that this is fair, i.e. the court can allocate the property brought into the marriage by one of the spouses to the other spouse at the time of divorce.
New York Alimony / Spousal Support
One of the spouses may be ordered by the court to pay alimony to the other. Usually, the judge will consider many factors before determining the amount of alimony such as the duration of the marriage, the earning capability of each spouse, the capability of the receiving spouse to become self-supporting and the homemaking and financial contribution of each spouse to the marriage. If any spouse wants to modify the permanent alimony award, he/she must prove that the circumstances have changed significantly such that the alimony is not appropriate any longer.
New York child Custody
Usually, when making any decision regarding child custody or visitation, the court takes into account the best interests of the child. The custody of the child may be awarded to one parent or both parents with the objective of providing the child with a stable environment. The various factors such as the age and mental and physical health of the child, the emotional bond that the child has with each parent, the lifestyle of both parents, the capability of each parent to provide the child with food, clothing, medical care and shelter are considered by the court before making a decision.
If both parents have an agreement on the custody arrangement of the child, they can submit their proposal to the court, which the court will consider and if there is any requirement to modify the custody, then you must prove to the court that the situation has changed and it is in the best interest of the child to change the custody agreement.
New York child Support
The child support is calculated on basis of the combined income of both the parents. The child support continues until the child turns 21 years old. The court will consider various factors such as the financial resources of each parent, health needs or any special needs of the child, standard of living that the child is accustomed to before determining the child support. One of the parents may be ordered by the court to pay for the medical, educational and health insurance expenses of the child. If you require any help while enforcing a court order for child support, you can contact the Child Support Enforcement, New York Division.
Step 6: Finalizing your New York divorce
In an uncontested divorce, once the defendant is served, he/she may respond in any of the ways mentioned below:
The defendant files his/her answer with the supreme court and also serves the plaintiff, which means that the divorce becomes a contested one.
The defendant signs the “Affidavit of Defendant” form, which means that he/she agrees to all the terms of the divorce and you can move the next step i.e. calendaring.
The defendant doesn’t respond, which means that he/she has defaulted and you move to the next step of calendaring.
In the case that the “Affidavit of Defendant” is signed by the defendant or he/she defaults, then you must complete all the other forms along with the “Note of Issue” form.
The papers must be filed with the office of the Supreme Court clerk or the county clerk depending on your county.
If the judge approves your divorce, then he/she will sign the divorce judgment, a copy of which must also be given to the defendant.
The divorce judgment may be either mailed to you or you may have to collect it, depending on your county.
The divorce judgment must be then filed with the county clerk.
A copy of the judgment must be served to the defendant and you must complete an “Affidavit of Service” again.
In the case of a contested divorce, you should hire a divorce attorney and your spouse and you will have to go the supreme court several times before the judge decides on the various issues that your spouse and you disagree about. The papers must be filed with the office of the Supreme Court clerk or the county clerk depending on your county.