When you and your spouse have realized there is no saving the marriage the obvious choice would be to get a divorce. The process for filing divorce can seem complicated if you’re unfamiliar with what is required of you and can become extremely costly. To help you get started we’ve created a step by step guide on how to get a divorce in New York City.
Uncontested Divorce or Contested Divorce New York City
Less than 10% of marriages in New York City actually make it to court. Technically, divorces don’t need to be finalized in court, but they do need to be approved by a judge.
This is why an uncontested divorce, where both parties agree to the terms and conditions of the divorce, is often considered the ideal situation. Contested divorces can be complicated and are usually very emotionally draining for everyone involved. Let us discuss the differences between the two.
Uncontested Divorce
An uncontested divorce in New York happens when both partners smoothly agree on all critical aspects, including asset share, child custody, visitation and support, and spousal support (if applicable). The couple reaches an agreement and presents it to the court for endorsement. Contested divorces are typically less expensive, quicker, and more streamlined than contested divorces.
However, the couple must fulfill certain requirements before pursuing an uncontested divorce in New York. The criteria include satisfying residency needs, ensuring the marriage is irreparably broken, and addressing financial obligations. After the settlement agreement is submitted, the court reviews it to ensure its fairness and reasonableness. When approved, the court issues a divorce decree.
Contested Divorce
A contested divorce can ensue when spouses can’t agree on essential issues. These disagreements traditionally center around child custody, division of assets, alimony, child support, and other relevant topics. It’s the court’s responsibility to provide a resolution in a contested divorce, where both parties have to come up with evidence in support of their position.
In New York, a contested divorce involves submitting a petition or complaint to the court, serving the other party, and participating in attempts to resolve outstanding concerns through discussions, mediation, or litigation. Contested divorces may be more demanding emotionally, financially, and time-wise. The proceedings may require courtroom hearings and maybe a trial.
It’s necessary to note that New York is a no-fault state, which means spouses need not prove fault or wrongdoing to secure a divorce. The presence of a broken marriage for at least six months is sufficient grounds for divorce.
How to File for Divorce in NY
Here is a step-by-step guide on how to file for divorce in NY:
- Meet Residency Requirements: Before you begin a divorce process in New York, make sure you meet the residency requirements. You must have resided in New York for at least two years or have plausible grounds for divorce occurring within the state.
- Determine Grounds: Next, you have to determine the grounds for divorce. You can choose between choosing no-fault grounds, such as an irretrievable breakdown of at least six months, or fault grounds, such as adultery or cruelty.
- Prepare Divorce Papers: Prepare the relevant divorce paperwork, which includes a Summons with Notice or Verified Complaint with details on personal information, grounds, and requests. Deliver the papers to your spouse legally and ensure they have proper notice of the divorce.
- Serve the Papers: Allow your spouse time to respond and negotiate settlements on custody, support, and division of assets if both parties agree.
- Finalize the Divorce: Finally, file the signed settlement agreement, proposed Judgment of Divorce, and required forms with the court, and wait for the judge to sign the Judgment of Divorce to finalize the process. Completion time may vary based on the complexity of the divorce.
A process server plays a crucial role in the divorce process, ensuring proper delivery of divorce papers to the spouse. They serve as a reliable intermediary, facilitating the legal notification required for the dissolution of the marriage.
Step 1: Confirm That You Meet The Residency Requirements
If you were married in another state, you’ll need to ensure that you meet the residency requirements for New York before you file for divorce.
- Both you and your spouse have New York residency and the grounds for divorce happened in New York State.
- You or your spouse have resided in New York (continuously) for more than two years before starting the divorce.
- You or your spouse have resided in New York for one year and;
- The grounds for divorce happened in New York.
- You lived in New York as a married couple.
- You got married in New York State.
Step 2: Determine Your Grounds
In New York City there are seven legal and accepted grounds for divorce. Whether your divorce is uncontested or contested you need to have a legally accepted reason why you’re filing for divorce.
We’ll briefly explain each, so you understand.
- Irretrievable breakdown of the marriage for a period of 6 month (No Fault Divorce): To use this ground your marriage will need to be over for a period of six months. You and your spouse will also be required to agree on custody, division of assets and child support.
- Cruel and Inhuman Treatment
For this ground to be legally permissible the plaintiff (the individual who filed for divorce) will need to be able to prove that there have been specific acts of cruelty in the last five years. These acts of cruelty will need to make it unsafe for the plaintiff to continue residing with the defendant. - Adultery
To use this ground the plaintiff will need to prove that the defendant committed adultery in the course of the marriage. However, for this to be legally acceptable testimony from someone other than the plaintiff or defendant needs to be given. - Imprisonment
To use this ground your spouse will need to have been imprisoned for 3 consecutive years after you were married. You’ll also be able to use this ground for up to 5 years after they’ve been released from prison. - Abandonment
For this ground to be legally permissible a spouse would need to have physically left the residence for a period of one year or have refused to have intercourse with the other spouse for a period one year. - Divorce after a legal separation agreement
For this ground to be legally permissible you’ll need to have a valid separation agreement drawn up and signed and have lived apart from your spouse for one year. - Divorce after a judgement of separation
To use this ground the Supreme Court would have drawn up a separation agreement and you and your spouse would be living separately for at least one year.
Step 3: Decide Whether You’ll File A Contested or Uncontested Divorce
Uncontested divorces are easier to file. You don’t need your spouse’s approval to go ahead with this type of divorce. Although you’ll need to be under the impression that your spouse will agree to the stipulations set out in the documents. Basically, you need to be of the view that your spouse won’t contest whatever is stipulated in the divorce.
If you’ve tried to seek an amicable resolution in the past or you and spouse aren’t able to agree on what the stipulations, then you’ll need to pursue a contested divorce as they’ll likely to object to an uncontested divorce.
Step 4: Download, Print and Fill In The Necessary Paperwork or Meet With An Attorney
You can choose to use an online service or get the paperwork for free from the State’s Unified Court System. Even if your divorce is uncontested you may need to meet with an attorney so you know you’ve gone over every aspect that would be affected by a divorce.
This would include:
Child support
Spousal support (alimony)
Division of property and debt
Visitation rights
If you know your divorce would be contested or you’re unsure about whether it would be uncontested or contested, you’ll need to meet with an attorney to discuss the way forward. They’ll be able to draw up the paperwork and give you guidance about what happens next.
Step 5: File With The Clerk of the Court and Serve Your Spouse
If you’re conducting most of the divorce yourself (DIY) then it will be your responsibility to file with the clerk of the court. It will also be your responsibility to purchase index numbers, pay the filing fee, make the necessary copies and have them notarized if necessary. The total cost for filing would be $335, this excludes notarizing and making copies.
Filing through an attorney will cost more, but it will relieve you of all the tasks above. Your attorneys will consolidate the legal fees along with their professional fees and handle the payments to the County Clerk’s Office. After filing the papers, your attorney will have your spouse served by a process server. This should happen within 120 days of filing.
For people who are filing for divorce without an attorney, they can submit their court papers online through the New York State Court’s E-Filing System (NYSCEF). If both parties will file through the NYSCEF, all future documents will also be delivered electronically. Note that e-filing still requires the plaintiff to serve the divorce papers to the defendant in the next 120 days.
To get your divorce finalized as quickly as possible you should get a process server to serve your spouse as close to the start of the 120 days as possible. Once your spouse has been served, they’ll only have 20 days to file a response.
The service of process (handing over of the divorce papers) can be done by anyone who is not the plaintiff. This means a friend or third-party individual can do the process service for you. If the task proves too difficult, however, you’ll need the services of professional process servers in New York City.
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Step 7: Wait For Their Response
You may think your spouse will agree to the divorce but even the most clear-cut divorces can be contested for any number of reasons. So, once your spouse has been served first wait for their response before you make any arrangements. If they do contest the divorce, you’ll need to consult with an attorney regarding what you’ll do next, and be prepared for a drawn out mediation, or going back and forth in family court. Either of these situations will only prolong the divorce and cost you more than you initially expected.
Step 8: Finalize Your Divorce
Your divorce will only be finalized once a judge approves it. This could take a while if your spouse is adamant about making the process as drawn out as possible. If this isn’t the case (and your spouse has agreed to an uncontested divorce) you’ll still be required to wait for the judge’s approval. In some instances, uncontested divorces are finalized in six weeks.
Disclaimer: The information in this post does not substitute the advice of an attorney or licensed legal practitioner