How to File for Divorce in New York
Aug. 28, 2024
Filing for divorce can be a stressful and emotionally charged process. In New York, the steps and requirements for filing are governed by state law, and navigating them can be challenging without the right guidance. A divorce attorney can help streamline the process by making sure that all legal obligations are met and providing clarity on the necessary forms and procedures. This blog offers a comprehensive overview of how to file for divorce in New York, including insights into the forms, procedures, and potential challenges you might face.
Understanding Divorce in New York
New York offers both fault-based and no-fault divorce options. The no-fault divorce is the more common route and is based on the irretrievable breakdown of the marriage. Fault-based grounds include adultery, cruelty, abandonment, imprisonment, and others.
No-Fault Divorce
The no-fault divorce in New York is based on the premise that the marriage has irretrievably broken down for at least six months. This is often simpler and less contentious than fault-based divorces, as it doesn’t require proving that one party is at fault.
Fault-Based Divorce
For a fault-based divorce, the petitioner must prove that their spouse is at fault for the breakdown of the marriage. Grounds for a fault-based divorce include:
Adultery: One spouse has engaged in sexual relations with someone outside the marriage.
Cruel and Inhuman Treatment: One spouse has subjected the other to physical or emotional abuse.
Abandonment: One spouse has abandoned the other for at least one year.
Imprisonment: One spouse has been imprisoned for a period of three or more years.
Living Apart Pursuant to a Separation Judgment: The couple has been living apart under a court judgment of separation.
Considering Eligibility Requirements
Before filing for divorce in New York, make sure that you meet the following eligibility criteria:
Residency Requirement
At least one spouse must meet the residency requirements to file for divorce in New York. The requirements are:
One spouse must have lived in New York for at least two years immediately before filing, or
Both spouses must have lived in New York at the time of filing, and the grounds for divorce occurred in New York, or
One spouse must have lived in New York for one year immediately before filing, and the marriage took place in New York or the couple lived in New York as a married couple.
Legal Capacity
Both parties must be legally competent to enter into a divorce. This generally means they’re not under duress, incapacitated, or otherwise unable to understand the nature of the proceedings.
Preparing to File
Collect Necessary Documents
Before filing, gather all relevant documents, including:
Marriage Certificate: A copy is required to prove the marriage.
Proof of Residency: Documentation that shows one or both spouses meet the residency requirements.
Financial Statements: These may include income, expenses, assets, and liabilities.
Consult an Attorney
While it’s possible to file for divorce without a divorce attorney, consulting with a lawyer can provide valuable insights and help you navigate intricate issues, particularly if there are significant assets, children, or disagreements.
Filing for Divorce
Draft the Divorce Complaint
The process begins by drafting a divorce complaint (also known as a summons and complaint). This document outlines the grounds for divorce and the relief sought, such as property division and support.
Complete Required Forms
You’ll need to complete several forms:
Summons with Notice or Summons and Complaint: Initiates the divorce action.
Affidavit of Plaintiff: A sworn statement by the spouse filing for divorce.
Affidavit of Service: Proof that the other spouse was served with the divorce papers.
Child Support Worksheet: If applicable, detailing child support calculations.
These forms can be obtained from the New York State Unified Court System website or from your local courthouse.
File the Forms
Submit the completed forms to the county clerk's office in the county where you or your spouse reside. There is a filing fee, which varies by county. If you cannot afford the fee, you may apply for a fee waiver by submitting an affidavit of indigency.
Serving the Divorce Papers
Service of Process
The other spouse must be officially notified of the divorce proceedings through a process called “service of process.” This can be done in several ways:
Personal Service: Hand-delivering the documents to the spouse.
Service by Mail: If the spouse agrees, the documents can be sent by mail.
Service by Publication: If the spouse cannot be located, you may request permission from the court to publish a notice in a newspaper.
Proof of Service
After serving the papers, file the proof of service with the court. This document confirms that the other spouse has been properly notified of the proceedings.
Responding to a Divorce
The Respondent’s Options
The spouse who receives the divorce papers (the respondent) has several options:
File an Answer: Respond to the allegations and present any defenses or counterclaims.
Default: If the respondent doesn’t respond within the required time, the court may grant the divorce by default.
Settlement: The parties can negotiate and agree on terms without needing a trial.
Settlement and Negotiation
Many divorces are settled out of court. Both parties can negotiate terms related to the division of property, spousal support, and other arrangements. A mediator or a divorce attorney can assist in this process.
Navigating Courtroom Procedures
Preliminary Conference
A preliminary conference is often scheduled to address initial matters and set a timeline for the divorce process. During this conference, the court, with input from each party’s divorce attorney, will review any temporary orders needed for miscellaneous issues.
Discovery
During the discovery phase, both parties exchange information and documents relevant to the case. This process helps identify and value marital assets and liabilities.
Settlement Conference
A settlement conference is held to encourage both parties to reach an agreement. If an agreement is reached, it’s submitted to the court for approval.
Trial
If the parties cannot reach an agreement, the case will proceed to trial. Each party, represented by their divorce attorney, will present evidence and arguments, and the judge will make a final decision on any unresolved issues.
Finalizing the Divorce
Judgment of Divorce
Once all issues are resolved, either through settlement or trial, the court will issue a Judgment of Divorce. This document legally ends the marriage and outlines the terms of the divorce, including property division and support.
Filing the Judgment
File the Judgment of Divorce with the county clerk’s office. Both parties will receive a copy of the finalized judgment.
Post-Divorce Considerations
After the divorce is finalized, update your legal documents, including:
Beneficiary Designations: Change beneficiaries on insurance policies, retirement accounts, and wills.
Name Changes: If you wish to revert to a maiden name or change your name, file the necessary paperwork.
Recognizing Common Challenges
Disputes Over Assets
Disagreements over the division of marital property can be contentious. Make sure that you have a comprehensive inventory of assets and liabilities.
Enforcement of Orders
If either party fails to comply with the terms of the divorce judgment, enforcement measures may be necessary. This can involve additional court hearings or legal action.
Help Is Here When You Need It
When you file for divorce at Rutkin & Wolf PLLC, we know the process can seem overwhelming with its various steps, from meeting residency requirements to handling court procedures and finalizing everything. But don’t worry—our goal is to make this journey as smooth and straightforward as possible for you. Our divorce attorney team is here to break down each step clearly and answer all your questions in a way that’s easy to understand. Serving White Plains, the Bronx, New Rochelle, and Lower Westchester County, we’re committed to being approachable and ready to guide you through every part of the process. If you have any concerns or need clarification, reach out to us. We’re here to make sure that your rights and interests are fully protected while making the entire process more manageable for you.