New York Divorce Process

Divorce isn’t usually an easy decision, and obtaining one isn’t a simple process. But understanding how to file for divorce in New York—and what to expect during the proceedings—can help to relieve some of the stress associated with getting divorced.

Requirements for Getting a Divorce

If you wish to file for a divorce in New York State, you must meet certain requirements. You must have valid grounds (or a legal reason) for divorce. You and/or your spouse must also live in the state for a specific amount of time prior to filing. Generally, either you or your spouse must be a resident of New York for a full year (or two years, in some cases) prior to the beginning of the divorce proceedings and meet certain other requirements. For example, you may need to show that the grounds for divorce are based on events that occurred in New York or that you were married in the state.

Filing for Divorce

If your marriage meets the requirements for a divorce in New York, the first step in the process is to complete the initial paperwork: either a Summons with Notice or a Summons and Verified Complaint. These forms outline the grounds for divorce and any “relief,” such as child or spousal support, that you wish to seek from your spouse. Next, you will file these forms with your County Clerk’s office and obtain an Index Number. At this point, you are named as the plaintiff in the case, and your spouse is the defendant.

The divorce paperwork then must be delivered, or served, to your spouse in person by another adult. If the forms cannot be personally served to your spouse for any reason, you must request permission from the Supreme Court for an alternate delivery method. The person who serves your spouse with the divorce papers should fill out an Affidavit of Service form to prove they completed the task.

Once your spouse receives the divorce paperwork, he or she has three options. If your spouse agrees to the divorce and the terms outlined in the forms, he or she will sign a form called the Affidavit of Defendant, and your divorce is considered to be uncontested. The County Clerk will submit your paperwork to a judge who, after approving the forms and your agreed-upon settlement terms, grants your divorce.

If your spouse does not want a divorce or does not agree with the grounds for or terms of the divorce, however, he or she may choose to file a Notice of Appearance with the court instead. Your spouse may also refuse to respond to the papers, in which case you are required to wait 40 days before proceeding. In either of these scenarios, your divorce is considered contested and you and your spouse will have to appear in a New York Supreme Court.

Court Proceedings for Divorce

In court, the judge will rule on the terms of your divorce, including property division, financial issues, child custody and support and, if necessary, orders of protection or temporary relief. While a New York Supreme Court judge is the only judge who can grant your divorce, you may also use the Family Court system or an alternative dispute resolution method to work out the details of spousal or child support and child custody and visitation rights.

New York is an equitable distribution state, which means that when the judge decides how to divide marital property between you and your spouse, he or she will do so in an “equitable” way after considering factors like prenuptial agreements, marriage length and spousal income and financial contributions to the property. Judges look at similar circumstances when deciding whether to award spousal support, or maintenance.

If you have children, your divorce must include provisions for both the physical custody and legal custody (which grants the authority to make decisions on behalf of the child) of your children, as well as visitation schedules and child support requirements. When ruling on issues relating to your children, the judge will consider factors such as the needs of the children and the financial and parental fitness of both you and your spouse. In New York, the Child Support Standards Act outlines the calculations judges use to determine child support.

This is only a very general outline of divorce in New York; the divorce process is complex, and so is divorce law. If you expect a contested divorce, it’s crucial to hire a divorce attorney to represent you. But even for an uncontested divorce, a lawyer makes navigating the complicated waters of divorce much easier—and a lot less stressful.


Ultimate Guide to Different Types of Divorce

If you are considering getting a divorce in New York State, you must give a reason for ending your marriage when you file. Under New York’s Domestic Relations Law, there are seven different reasons, or grounds, for divorce.

Irretrievable Breakdown or “No Fault”

The newest, and perhaps most commonly used, grounds for divorce in New York is irretrievable breakdown, also known as a “no fault” divorce. Prior to a law change in 2010, spouses were only able to file for divorce through one of the other legal grounds or by living separately for a specific amount of time and accepting all divorce terms.

To file for a no fault divorce, you and/or your spouse must attest that the marriage is irreparably damaged, and has been for at least six months. You must also show the court that you have agreed on how to distribute property, assets, debt, court costs and child support and custody, either independently or through a court order. You will not, however, be required to explain the reasons that your marriage is irretrievable.

Cruel and Inhuman Treatment

In cases of actual or threatened physical, verbal, emotional, sexual or economic abuse, you may be able to file for a divorce on the grounds of cruel and inhuman treatment. According to New York law, this type of divorce is reserved for cases in which one spouse’s behavior is so mentally or physically damaging that it is unsafe or improper for the marriage to continue.

To qualify for a divorce because of cruel and inhuman treatment, your spouse’s abusive behavior generally must be ongoing (not an isolated event) and must have occurred within the last five years. You will be asked to describe, in detail, specific information about your spouse’s actions and why living with him or her puts you in danger.

Abandonment

The court may also grant a divorce if one spouse abandons the other. There are three types of abandonment under New York law: physical abandonment is when one spouse leaves the home, constrictive abandonment occurs when one spouse refuses to have sex with the other, and abandonment by lock out is when a spouse forces his or her partner to leave. In all three cases, the abandonment must be continual and have started at least one year ago. If both spouses agree to the separation, though, it is not considered abandonment.

Imprisonment

You can also file for divorce if your spouse is imprisoned after you are married. New York law allows imprisonment as grounds for divorce if one spouse serves three or more consecutive years in prison, typically within the past five years.

Adultery

Adultery—when a person has sex with someone else without their spouse’s consent—is another legal grounds for divorce in New York. In order to be granted a divorce because of adultery, you must prove to the court that your spouse had sex with another person based on evidence other than your spouse’s admission, which is usually difficult to provide. Adultery can sometimes serve as the basis of divorce on the grounds of cruel and inhuman treatment.

Conversion of a Judgment of Separation

You may be granted a divorce through the conversion of a judgment of separation that has been issued by the state Supreme Court. This is an uncommon type of divorce, though; the process of obtaining a decree of separation from a judge is similar to filing for divorce, and most couples simply seek a divorce instead.

Conversion of a Written Separation Agreement

If you and your spouse have been living separately because of a written agreement not issued by a judge, you may also be granted a conversion of this arrangement into a divorce. You will need to show the court that you have lived apart for at least a year in accordance with the terms of the agreement.

Contested versus Uncontested

In addition to the types of legal grounds for divorce, you may be familiar with the terms “contested” and “uncontested” divorces. In an uncontested divorce, both spouses consent to the terms of the divorce. A contested divorce, however, is more complicated and occurs when spouses disagree on issues like child custody and the division of property.

An experienced divorce attorney will help you navigate the different types of divorce and decide which is most appropriate for you and, importantly, make the process a bit less daunting.


Save Time And Costs With An Uncontested Divorce

Are you and your spouse contemplating a divorce? If so, did you know that if you both agree to the divorce, it can save you both a lot of time and money?

An uncontested divorce, also known as an “amicable divorce”, is a process in which both spouses enter into an agreement consenting to end their marriage. The keys to the success of an uncontested divorce are cooperation and communication. Together the spouses come to an agreement on the division of assets, the settling of debts, child custody, child support, alimony, and any other pertinent issues relevant to the divorce. Further, the parties to an uncontested divorce are generally able to avoid making a lot of court appearances.

The Benefits of an Uncontested Divorce

Since an uncontested divorce tends to be a cooperative process, there are significant benefits to an uncontested divorce:

  • The avoidance of costly attorneys’ fees.
  • The parties versus a judge decide on what terms of the divorce are fair, such as division of assets and debts, child custody, alimony, and child support.
  • A final divorce decree can be obtained rather quickly.
  • The process reduces the emotional stress the parties and their children may suffer as a result of a drawn out divorce.

Preparing for an Uncontested Divorce

Below sets forth some initial steps that should be taken to make sure the process goes smoothly:

  • Gather financial information such as tax returns, bank account statements, retirement savings statements, credit card statements, real estate documents, mortgage statements, business investment statements, insurance policies, debts, and expenses.
  • Speak with a qualified divorce attorney and answer all of the attorney’s questions thoroughly and truthfully.
  • Also consider speaking with a psychologist or therapist to address any fears or concerns regarding the divorce.

The Responsibilities of a Divorce Attorney
The following provides a general idea of what divorce attorneys do for their clients.

  • Communicate with the other spouse’s attorney.
  • File a Complaint for Divorce on behalf of their client.
  • Analyze all issues and documentation with their client along with educating them on the pertinent issues so an informed decision can be made by their client.
  • Negotiate a settlement agreement that is favorable to their client and reflects the terms agreed to by the parties.
  • Prepare the Judgment of Divorce to be submitted and signed by the judge.
  • Attend the uncontested court hearing on their client’s behalf.

The Uncontested Divorce Hearing

The last step in an uncontested divorce is the uncontested divorce hearing. While this hearing may be stressful to the parties because they will most likely need to appear in court and answer questions, it should be noted that the uncontested divorce hearing is simply a formality. The settlement agreement between the parties has already been negotiated and agreed to and therefore, the hearing is the final step before the final divorce decree is issued.

Below describes what usually takes place at an uncontested divorce hearing:

  • Both spouses will take an oath, affirming to tell the truth
  • Whichever party filed for divorce (i.e., the plaintiff) goes first and is asked a series of simple questions by his or her attorney. For example, the plaintiff may be asked:

o Place of residence
o Date of marriage
o Names and birthdates of any children
o Whether there are any grounds for divorce

  • If the other spouse (i.e., the defendant) filed a counterclaim, then he or she will be asked by their attorney similar questions
  • Upon the conclusion of the questioning, and provided the judge is satisfied by the questions and answers provided, the divorce will be granted.

 

The attorneys at the Law Offices of Julio Portilla PC will make sure that you get what is fair and what you deserve and are able to serve a diverse population, including Spanish-speaking clients.