New York has one of the country’s lowest divorce rates at 6.10 percent (the national rate is at 7.6 percent, according to the U.S. Census Bureau’s 2019 American Community Survey). While it’s good news for some, the people who belong to the 6.10 percent believe filing for divorce is the most sensible course of action.
This article is for New Yorkers who need a guide on how to file a divorce.
Grounds for Divorce
The law states that for a divorce to be even considered in court, the couple must present a legally acceptable reason for their decision.
New York has seven grounds for divorce:
- An irretrievable breakdown of the relationship (for at least six months)
- Cruel and inhumane treatment (specific acts committed in the last five years)
- Physical abandonment or constructive abandonment (for at least one year)
- Imprisonment of a spouse (for at least three consecutive years)
- Adultery (evidence must be provided in court)
- Judgement of separation (for at least one year)
If you intend to file a divorce in New York, you must have sufficient, concrete evidence to support one or more of these grounds.
Divorces filed in New York must also meet the following residency requirements:
- Either spouse lived in New York State for at least two consecutive years before the start of the divorce case.
- Either spouse lived in New York State for at least one year and the couple meets one of these three criteria:
- They got married in New York.
- They lived in New York State as a married couple.
- The grounds for their divorce took place in New York.
- Both spouses are New York State residents on the day the divorce process starts and the grounds for the divorce happened in New York State.
2 Types of Divorce Filed in New York
Before starting the divorce process, you should determine what type of divorce to pursue.
- Uncontested Divorce – Also known as a “mutual divorce,” this suggests that both spouses have discussed the matter beforehand and both agree to the grounds presented to end their marriage. There is no need for a judge or trial in an uncontested divorce.
- Contested Divorce – If the spouses disagree on some of the issues presented in the case, they will need a judge to hold a trial and decide on the outcome of their divorce.
An uncontested divorce is ideal because it is cheaper and faster than a trial divorce.
Filing the Papers
Once you’re done with the above, you may consult your divorce attorney and put together the documents to officially file for divorce at the County Clerk’s office. For clarity, the spouse filing the divorce will be known as the plaintiff, while the spouse being served with divorce papers is the defendant.
As the plaintiff, you need to bring the following documents to the County Clerk’s office:
- Summons with Notice or Summons with Complaint
- Notice of Automatic Orders
- Notice Concerning Continuation of Health Care Coverage
- Settlement Agreement (if already prepared; this is common in uncontested divorces)
New York also established the NYSCEF (New York State Courts Electronic Filing), an online filing system where people who don’t have divorce attorneys can submit divorce papers.
You may file through the NYSCEF if you meet these requirements:
- You’re filing an uncontested divorce (DIY Uncontested Divorce Program).
- Your marriage ended for at least six months.
- You have no children under 21 years old.
Service of Process
The next thing you need to do is process service. Similar to a civil lawsuit, the plaintiff must serve the divorce papers to the defendant within 120 days of filing.
Who can serve the papers to the defendant? Although the defendant must be served in person, the plaintiff must not be the one to do it. Anyone not party to the case and is 18 years old or older can serve the divorce papers.
Other things to take note:
- If the defendant is in New York State, the process server must also be a New York resident.
- If the defendant is outside of New York State, the process server should be eligible to serve legal papers according to the laws of that state.
The person who served the defendant must also file an Affidavit of Service. To make things easy and hassle-free, we strongly recommend that you hire professional process servers for this task. Mistakes in the Service of Process could cause delays in the legal process, so it has to be done correctly.
Serve Index LLC can take care of this for you. You can reach us anytime via call or email.
Defendant’s Response and Calendaring
Defendants have 20-30 days to respond to a divorce action. Their response will also verify whether the divorce will be contested or uncontested.
- If the defendant files an Answer, they are contesting the divorce and you will need to have a divorce lawyer.
- If the defendant signs the Affidavit of Defendant, it means they agree to the divorce and the summons. The divorce can then proceed to the court calendar for review (calendaring)
- If the defendant doesn’t respond at all, it means they defaulted and the case can go straight to calendaring.
In an uncontested divorce, the judgment can be signed then mailed or picked-up immediately after. Depending on the county that gave the judgment, you may have to file it at the County Clerk’s office.
The last step is to serve the defendant with a copy of the judgment following New York’s service process rules.
At least two steps in the divorce process require the services of a seasoned process server. To prevent delays and avoid spending more on your divorce, make sure the Service of Process is carried out by a professional.
Keep the divorce process as hassle-free as possible with Serve Index LLC. Contact us.