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.