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How to File a Divorce

Filing a divorce in New York

How to File a Divorce in New York

To file a divorce in New York, you must first satisfy the residency requirements outlined in Section 230 of the state's Domestic Relations Law. The requirements mandate that:

  • The couple's wedding takes place in New York State, and either divorcing spouse is a resident of the state at the time of the commencement of the divorce action. Also, either spouse is required to have lived continuously in the state for one year prior to initiating the divorce action; or
  • The divorcing parties resided in New York State as husband and wife and one of them was a resident in the state for a continuous period of one year immediately before initiating the divorce action; or
  • The divorce grounds happened in New York State and either divorcing party is a resident who has lived in the state for an uninterrupted period of one year before the initiation of the divorce action; or
  • The divorce grounds happened in New York State, and both parties live in New York at the time the action was filed; or
  • If you and your spouse got married outside of New York State, you never lived together as husband and wife in the state, and the grounds for divorce did not occur in New York State, then, either of the parties must be a New York State resident and have lived continuously in the Empire state for a minimum of 2 years prior to bringing the case to court.

Secondly, you must serve your partner with a Summons and Complaint or a Summons With Notice. Follow these steps to complete the serving:

  • Step 1: Initiate the divorce action by purchasing an index number at the County Clerk's office and filing the summons with the same office. Also, file the relevant divorce forms with the county clerk's office. If your marriage has broken down for at least 6 months and you have no children under 21, you are required to use the DIY Uncontested Divorce Program Packet to prepare your papers. If children under 21 exist in the marriage, use the Paper Uncontested Divorce Packet. Once these papers have been notarized, it is recommended that you make copies and also file Notice of Automatic Orders, Settlement Agreement if you have one, and Notice Concerning Continuation of Health Care Coverage.

Note that the county clerk may request additional forms and documents as applicable. You can find New York divorce forms on the divorce form page and the uncontested divorce forms page of the New York Courts website. Court and filing fees worth $335 or more will be required before finalizing your paperwork with the court. Divorce cases are handled in the Supreme Court in New York State.

  • Step 2: Your spouse must then be personally served with a copy of the summons. It is critical to ascertain your spouse's location. If the person serving the summons resides in New York State, the individual must be a resident above 18 and not be a party to the lawsuit (this means you may not serve your spouse with the summons).

If your spouse resides outside of New York State, the state still requires the partner to be personally served with the summons. Although it may be expensive, it is preferred to have the serving done by a New York resident. If you designate a non-resident of New York State to serve your spouse outside the New York State, the server must be a qualified attorney, solicitor, or equivalent in that state or country. Otherwise, the individual must be allowed to serve documents under the state's laws. Subsequently, the person who serves the papers must complete a notarized affidavit of service to establish that the documents were indeed served.

Finally, to file for divorce, you must satisfy one of the grounds for divorce outlined in Section 170 of the Domestic Relations Law.

  • Cruel and inhuman treatment including any form of physical or psychological abuse of one spouse by the other, endangering the spouse's bodily or mental well-being and rendering the couple's continued cohabitation hazardous or inappropriate.
  • Abandonment such as willfully leaving the other spouse for one or more years.
  • Incarceration of one of the divorcing parties for a period of three or more consecutive years after the marriage.
  • Adultery.
  • The spouses have lived apart for one or more years after the decree or judgment of separation, and the plaintiff has provided convincing evidence that all conditions and terms of the judgment or decree have essentially been fulfilled.
  • The spouses have lived apart for one or more years following the execution of a formal Agreement of Separation signed in front of a notary, and the plaintiff has submitted satisfactory proof of substantially fulfilling all of the terms and conditions of the agreement, which is filed in the county clerk's office where either spouse resides.

New York also permits a couple to divorce on a "no-fault" ground. Here, the relationship between husband and wife has irretrievably broken down for a period of at least six months, as acknowledged under testimony by one of the divorcing parties. A New York court will issue no judgment of divorce under this provision until the issues of equitable distribution of marital property, spousal support, child support, visitation, and custody have been resolved by the couple or determined by the court and incorporated into the judgment of divorce.

How Long Does It Take to Get a Divorce in New York?

A divorce, contested or uncontested, can take a long time, especially if the paperwork is filed incorrectly or late. The timeline for a divorce action also depends on the county where the action is filed, the court's calendar, marital properties, children involved, and the cooperation between spouses in the case. A contested divorce typically lasts about 9-12 months. In difficult circumstances, contested divorces may take up to 2-3 years. Uncontested divorces are more often quickly resolved, with the process lasting between 1-3 months, while others may take up to 6-9 months.

How Much Does a Divorce Cost in New York

Although several factors come into play in determining the overall cost for a divorce in New York, it is typical to spend thousands of dollars to complete the divorce process, especially if it is a contested divorce. If you are filing for divorce, you have to pay filing fees at the county courthouse, pay additional fees for any motion filed, attorney fees if you choose to hire a divorce attorney, and other charges for serving your spouse.

Uncontested divorces are usually less expensive than contested divorces. You can get an uncontested divorce if you and your spouse can negotiate and agree on major issues, such as who gets to retain the house. If you request the court's assistance in determining how property is divided, you will likely incur additional attorney's costs.

Before filing your divorce action, you will be required to pay filing fees including, $210 for Case Index Number, $95 for the Request for Judicial Intervention, and $30 for the Note of Issue, making a total of $335. You will be charged $45 for any motions filed and $35 for a written Stipulation of Settlement after the divorce action has started. Depending on the circumstances around your divorce, you may not need to file a motion or require a Stipulation of Settlement. To serve the initial divorce papers on your spouse, fees vary between $100 and $200.

If you opt to be represented by an attorney, you will also incur attorney fees. Several factors impact attorney fees, such as the complexity of the case, location, and the attorney experience.

How to File a Divorce by Yourself in New York

If parties seeking a divorce agree to communicate and reach an agreement on outstanding issues, a divorce action may be filed without needing a lawyer. Property, assets, and debt are typically outstanding issues in a marriage when divorce matters are negotiated between divorcing parties. If the marriage produces children under 21, issues of child custody, visitation, and support must also be addressed.

Once issues have been addressed and resolved between spouses, it is only a matter of preparing the divorce forms appropriately to reflect the case's circumstances. There are a few ways to file a divorce action without a lawyer. Some New York courts provide divorce packets for parties to take home for completion. Another alternative is to hire a divorce document preparation service to prepare the paperwork for you.

A divorce action starts with the plaintiff filing paperwork at the county clerk's office. After that, the court will process the documents and assign an index number to the case. Following the court's assignment of the index number, the defendant must be personally served (if the defendant is willing to sign the documents, the party may also sign a waiver of service document, called Affidavit of Defendant). After the defendant signs the forms, the plaintiff sends final filing documents to the court, where the paperwork is processed, and a judge is assigned to the case. Prior to finalizing the divorce, the court will evaluate the case. Although no court appearances are usually necessary in an uncontested divorce in New York, the court may order that a divorcing party appear before the judge to present additional information on a matter.

After about 60 to 90 days, you may visit the county clerk's office and pick up your divorce judgment. By then, the court is likely to have rendered a final judgment in your divorce. When you have completed the preceding procedures, you only need to complete your entry form notification and mail it to your spouse together with the court-signed final decision. You are now formally divorced when you notify the court that you have accomplished this step.

Choosing a Divorce Lawyer in New York

A divorce action can be a complex, technical, and emotional process for the parties involved; hence, it is vital that you opt for an experienced divorce attorney with practical experience in the particular areas that are important to you. You may find the following steps helpful in choosing a divorce attorney:

  • Consult several attorneys. You are not obligated to hire the first lawyer you consult no matter the promises made by the attorney. It is best to speak with more than one attorney before settling on a choice.
  • Hire a divorce lawyer with expertise. Attorneys typically specialize in various disciplines, so be sure the one you choose specializes in family law or has handled divorce matters before.
  • Ask questions about the attorney's expertise, billing procedures, or any other subject that needs clarification.
  • It is best to hire a lawyer knowledgeable with your county's Supreme Court. This does not mean that you must engage an attorney from your own county, but the attorney must be familiar with the regulations of the Supreme Court where your case will be filed. It is preferable to have someone knowledgeable with court staff and how the court operates than to have the attorney learn the court's ins and outs while managing your case.
  • Supplement any consultations with internet research, calls to the local bar organization, or even the disciplinary committee to determine whether the attorney has a bad reputation.
  • Ask friends and relatives if they know of any successful divorce lawyers. When a lawyer performs an excellent job for a client, they will always be recommended.

Can You Get a Divorce in New York Without Going to Court?

Even if you and your spouse have settled the outstanding matters in the marriage, such as child custody, visitation, support, debts, and assets, you still have to file a divorce petition to the court physically or electronically in order to dissolve the marriage formally. However, you may not have to make physical appearances in court proceedings for the petition to be granted. Since divorce is case-specific, the parties can achieve a comprehensive settlement of all divorce-related issues, sign all required documents, and get a signed Judgment of Divorce without either party ever entering the courtroom.

How to File for Divorce in New York with Children

New York divorce petition filing generally follows the same process. However, there are additional considerations and steps to undertake when children are involved. When children are involved, you should expect to have conversations with your spouse or attorney on parenting plans, child custody, support, and visitation in filing a divorce action. Before filing for divorce, the Family Court may assist you with the matters stated above if you have children under 21.

The filing process for divorce with children is the same for when no children are involved. However, if you are filing for an uncontested divorce and have children under 21, use the paper Uncontested Divorce Packet to prepare your divorce papers.

How to File for Divorce Online in New York

In some New York courts, you may be able to file your divorce papers online through the New York State Courts Electronic Filing System (NYSCEF). To verify if the court in your county uses the NYSCEF, check the e-filing County List. Note that in order to file a document electronically on the filing system, whether as a self-represented litigant or as an attorney, you must register on the NYSCEF page. When you file a claim on the system, you will be required to pay a $50 filing fee via credit card or personally at the county clerk's office. All documents filed on the NYSCEF must be in Adobe. pdf format. For more instructions on using the NYSCEF, check the E-filing Instructions page on the New York Court website.



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