Divorce can be a difficult and emotional process, no matter where you live. In New York State, there are specific laws and procedures that govern how a divorce is handled. Whether you’re considering filing for divorce or you’ve already begun the process, it’s important to have a basic understanding of what to expect. This Eastcoastlawss.com article will provide an overview of the divorce process in New York State, including the grounds for divorce, the different types of divorce, and the steps involved in obtaining a divorce. By understanding the process, you can better prepare yourself for the road ahead and make informed decisions about your future.
New York Divorce Grounds
Both fault-based and no-fault divorce grounds are recognized by New York divorce law. If you and your spouse have been apart for at least a year or there has been an “irretrievable collapse of the marriage” for at least six months, you may file for a no-fault divorce in New York. After signing a separation agreement and separating for at least a year, a couple may potentially file for divorce.
Alternatively, you or your spouse might file for divorce on the basis of fault. In a fault-based divorce, one spouse must establish that the other spouse was at fault for the dissolution of the marriage. The following grounds for finding fault are recognized in New York:
- cruelty, including mental or physical abuse
- abandonment for one or more years
- imprisonment for three or more years, and
- adultery.
Due to the necessity to establish responsibility at trial, fault-based divorces are typically more time-consuming and expensive than no-fault divorces. However, in some circumstances, demonstrating the other spouse’s guilt may be advantageous to the innocent spouse when a judge decides custody or when allocating property. ( NY Dom. Rel. L. § 170 (2020).)
Divorce Summons In New York State
In New York State, a divorce summons is a legal document that initiates the divorce process and notifies the other spouse that a divorce case has been filed against them. The summons must be served to the other spouse, along with a copy of the divorce complaint, which outlines the grounds for the divorce and the relief sought by the filing spouse. Once the summons is served, the other spouse has a specified amount of time to respond to the complaint. If they fail to respond, the divorce may proceed uncontested.
In New York state, you only have twenty (20) days to answer a divorce summons personally delivered to you under New York law, so you must immediately contact a divorce attorney to start working on your divorce case.
Divorce Process Pitfalls In New York State
The most crucial phases of the divorce procedure in New York State may be the initial ones. When you are considering divorce, it is crucial to learn as much as you can about family economics because things frequently disappear once it becomes evident that divorce is imminent. If you weren’t expecting the divorce, you might need to take quick action to protect your access to financial records and information.
You can get access to any lost documents with the aid of an accomplished New York family lawyer. Additionally, it is equally important to guarantee the confidentiality of all contacts with your divorce lawyer, so avoid keeping your email passwords on a shared computer or on your phone while going through the divorce.
Divorce Process in New York
After one spouse files for divorce in a contested divorce in New York, the frequently laborious and occasionally agonizing process of financial discovery in a divorce case starts. Long lists of inquiries, or “interrogatories,” that have been created by the family lawyers and that must be answered under oath may be sent from one side to the other. Finances, assets, pensions, and other related financial topics are covered in interrogatories. The spouses can also serve notices to produce papers like bank statements, credit card bills, receipts, tax returns, paycheck stubs, and the like through their divorce attorneys.
Residency Requirement And Waiting Period
To get a divorce in New York, one of the following scenarios must apply:
- you were married in New York and one spouse has lived in the state for at least one year
- you lived in New York as a married couple and either spouse has lived in the state for at least one year
- the grounds for your divorce arose in New York and you or your spouse has lived in the state for at least one year at the time you file for divorce, or
- you or your spouse has lived in the state for at least two years.
Once your case is filed in New York, there’s no formal waiting period before a judge can enter a decree of divorce (final order) in your case.
How To File For Divorce In New York
The following details are provided to assist you in navigating the New York divorce procedure. However, it might be in your best interest to think about a collaborative divorce before you file for divorce.
Meet the Residency Requirements
You must prove that you or your spouse resided in New York for at least a year prior to filing for divorce in order for New York courts to hear your case.
The first step in filing for divorce in New York is to determine the grounds for divorce. In New York, there are both fault and no-fault grounds for divorce. The most common no-fault ground is the “irretrievable breakdown of the marriage for at least six months,” while common fault grounds include adultery, cruel and inhumane treatment, and abandonment. It is important to note that the choice of grounds can impact the outcome of the divorce, so it is advisable to seek legal advice before proceeding.
Gather the Information You Need to Complete the Forms
A divorce is considered uncontested if one of the following two things occurs:
- You and your spouse agree on the terms of the 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
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.
- If you have been married for at least six months and don’t have any children under 21, use the DIY Uncontested Divorce Program to prepare your papers.
- If you and your spouse have children that are under 21, use the paper Uncontested Divorce Packet.
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.
Serve the Forms
After the forms have been completed and filed, they must be served to the other spouse. This is typically done by a third-party process server, but can also be done by certified mail, or return receipt requested. The spouse must be served with the Summons and Complaint within 120 days of the filing of the forms.
Wait for the Response
Once the other spouse has been served with the Summons and Complaint, they have a certain amount of time to respond. If they do not respond within the allotted time, the divorce can proceed as uncontested. If they do respond, the divorce will proceed as contested.
Negotiate Settlement
If the divorce is contested, the next step is to negotiate a settlement. This can be done through mediation or through the court system. The goal of settlement negotiations is to come to an agreement on issues such as child custody, child support, spousal support, and property division. If an agreement cannot be reached, the divorce will go to trial.
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.
How Will A Judge Divide Property In New York?
New York is an equitable distribution state, which means that in a divorce, a judge will divide marital property in a manner that is considered fair and equitable, but not necessarily equal.
Under New York law, marital property generally includes any property that was acquired during the marriage, regardless of whose name it is in. This can include real estate, bank accounts, retirement accounts, investments, vehicles, and personal property. Separate property, on the other hand, generally includes property that was acquired before the marriage, inherited property, and gifts.
In deciding how to divide marital property, a judge will consider a number of factors, including:
- The income and property of each spouse at the time of the marriage and at the time of the divorce
- The length of the marriage and the age and health of each spouse
- The need of the custodial parent to occupy or own the marital residence and to use or own its household effects
- The loss of inheritance and pension rights of each spouse as a result of the divorce
- The loss of health insurance benefits for each spouse as a result of the divorce
- Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having a title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner, and homemaker, and to the career or career potential of the other party.
Based on these factors, a judge may award one spouse a greater share of the marital property than the other. For example, if one spouse has a significantly lower income than the other and is the primary caregiver for the couple’s children, the judge may award that spouse a greater share of the marital property in order to ensure that they are able to maintain their standard of living and provide for the children.
It is important to note that property division in a divorce can be a complex and contentious issue, and it is advisable to seek legal advice from an experienced family law attorney. An attorney can help you understand your rights and interests, negotiate a settlement agreement, and represent you in court if necessary.
Alimony Awards In New York
In some divorce cases in New York, alimony is not granted. If alimony is suitable in your case, the judge will consider a number of issues, including the necessity for financial support and the other spouse’s financial capacity. A judge will consider the length of the marriage, each spouse’s present and potential earning capacity, the recipient spouse’s capacity to become self-sufficient, and each spouse’s financial or domestic contributions to the marriage when making any alimony award.
A lump amount, temporary support, or recurring monthly payments can all be used as alimony awards. A person who wants to amend an alimony award must demonstrate that the situation has changed significantly enough that the previous order is no longer appropriate. A periodic alimony award often lasts the duration of the marriage.
Child Custody In New York
The best interests of the child are considered by New York courts when determining child custody or visitation arrangements. As long as the arrangement is in the child’s best interests, parents are free to create their own custody arrangements. To give the child the most stable environment possible, a court may grant custody to one or both parents if the parents are unable to come to an agreement.
To determine a child’s best interests, a New York judge may consider the following factors:
- the emotional bond between the child and parents
- the child’s age, mental and physical health
- the parents’ lifestyles, and each parent’s ability to provide the child with food, shelter, clothing, and medical care
- each parent’s physical and mental health
- either parent’s history of domestic violence
- the child’s relationship with siblings and extended family members
- the parents’ geographic proximity
- the parent’s ability to work together
- each parent’s willingness to encourage a relationship between the child and the other parent, and
- any other relevant factor.
Parents who agree on a custody arrangement may submit their proposed plan to the court and it will become an order of the court so long as it meets the child’s needs. If your case goes to trial, a judge will decide on physical custody and legal custody. “Physical custody” refers to where a child lives. “Legal custody” involves a parent’s decision-making rights over a child.
How Long Does It Take To Get Divorce In New York?
The time it takes to get a divorce in New York can vary depending on a number of factors, such as whether the divorce is contested or uncontested, and the complexity of the issues involved.
If the divorce is uncontested, meaning that both parties agree on all issues such as property division, spousal support, child custody, and support, the process can be relatively straightforward and may take as little as a few months.
However, if the divorce is contested and the parties are unable to come to an agreement on one or more issues, the process can be much longer and more complex. In a contested divorce, the court may need to hold hearings, conduct discovery, and make determinations about issues such as child custody, property division, and spousal support. This can take several months or even years to resolve, depending on the complexity of the issues and the backlog of cases in the court system.
In general, divorce in New York typically takes between six months to a year to finalize, but this can vary depending on the specific circumstances of the case. It is important to note that working with an experienced divorce attorney can help expedite the process and ensure that your rights and interests are protected throughout the process.
How Much Does It Cost To File For Divorce In New York?
The cost of filing for divorce in New York varies depending on a number of factors, such as the type of divorce, whether the divorce is contested or uncontested, and whether you hire an attorney to represent you.
The filing fee for a divorce in New York is currently $210, which is payable to the court at the time of filing. In addition to the filing fee, there may be additional costs associated with the divorce process, such as fees for service of process, court reporters, and expert witnesses. If you hire an attorney to represent you in your divorce, there will also be attorney’s fees to consider, which can vary widely depending on the attorney’s experience and hourly rate.
If the divorce is uncontested and the parties are able to come to an agreement on all issues, the overall cost of the divorce may be relatively low, as there will be no need for extensive litigation or court appearances. However, if the divorce is contested and the parties are unable to come to an agreement on one or more issues, the overall cost of the divorce can be much higher, as there may be additional legal fees, court costs, and other expenses associated with the court process.
Do You Need An Attorney To File For Divorce In New York?
You are not required to hire an attorney to file for divorce in New York, but it is generally recommended, especially if the divorce is contested or there are complex issues involved.
Divorce can be a complex legal process that involves a variety of legal, financial, and emotional issues. An experienced divorce attorney can help you navigate the process and protect your rights and interests throughout the proceedings. A skilled attorney can also help you negotiate the terms of a settlement, file the necessary paperwork with the court, and represent you in court if necessary.
If you and your spouse agree on all of the terms of the divorce, including property division, spousal support, and child custody and support, and there are no complex issues involved, it may be possible to file for divorce without an attorney. However, it is important to note that even in uncontested divorces, there are certain legal requirements that must be met, and an attorney can help ensure that everything is done correctly.
Overall, while it is not required to hire an attorney to file for divorce in New York, it is highly recommended, especially if the divorce is contested or there are complex issues involved. Consulting with an experienced divorce attorney can help ensure that your rights and interests are protected throughout the divorce process.
How To Find A Divorce Attorney In New York
Finding the right divorce attorney in New York can be a critical step in ensuring that your rights and interests are protected throughout the divorce process. Here are some steps you can take to find a qualified divorce attorney in New York:
- Ask for referrals: Consider asking friends, family members, or colleagues if they know of any reputable divorce attorneys in New York. If they have been through a divorce themselves, they may be able to offer insights and recommendations based on their experience.
- Check online directories: There are many online directories that list attorneys in New York. You can check sites like Avvo, Martindale-Hubbell, or Super Lawyers to find attorneys in your area and read reviews and ratings from former clients.
- Contact your state bar association: The New York State Bar Association can provide a referral service to help you find a qualified divorce attorney in your area.
- Attend legal clinics: Many legal clinics and workshops offer free or low-cost consultations with attorneys who specialize in divorce and family law. This can be a good way to meet with attorneys and ask questions before deciding whether to hire them.
- Schedule consultations: Once you have identified several potential attorneys, schedule consultations to meet with them and discuss your case. This can be a good opportunity to ask questions, learn more about the attorney’s experience, and determine whether they are a good fit for your needs.
Overall, finding the right divorce attorney in New York can take some time and effort, but it is an important step in ensuring that your rights and interests are protected throughout the divorce process.
