What is more difficult than breaking a marriage itself is legally dissolving a marriage agreement. The divorce process in NY can be gruesome and tricky, but with the right legal guidance and knowledge, each step can be made easier. It is understandable how overwhelming the sound of divorce is, but trust me if you take it one step at a time, it does become manageable.
In the United States of America, each state has its own set of family court regulations and legal requirements that should be fulfilled before the divorce process begins.
The Supreme Court handles divorce cases in New York. However, the Family Courts help in matters of custody, visitation and child support issues when minors are involved.
The divorce process in NY encompasses the following steps:
- Confirm legal validation of marriage
- Confirm residency
- Understand and compile the grounds for divorce (whether it is a fault or no-fault, contested or uncontested)
- Gather necessary information and filing
- Serving Summons to the Spouse
- Responding to Spouse
- Set a court date
- Time for Judgement
How To Start Divorce Process in NY
The divorce process in NY mainly involves eight major steps. To start your divorce process, you first need to make a decision of getting the divorce, so you move forward with a clear head.
Once that is done, you move on to confirming the marriage’s legal validation and residency, compiling grounds for divorce, collecting necessary information, filing the case, responding to your spouse, setting a date and waiting for the judgment.
Let us look at these steps in detail.
1. Confirm legal validation of marriage
The divorce process in New York State does not apply to a common law marriage, i.e., a marriage that is formed without a legal license and an official ceremony.
However, it does recognize common law marriages validated by other states, applying the “full faith and credit” clause (Article IV, Section 1) of the United States Constitution.
Breaking down the jargon implies that the State of New York will respect a common law marriage bound by another state’s law and affirm your status as a common law spouse[i].
But this also means that you comply with the rules of the State you lived in as spouses and not under other relationships like “live-in partners”.
2. Confirm residency
According to the §230 of Domestic Relations Law, governing the divorce process in New York, one or both of the spouses should have been legal residents of the State of New York for at least a year.
In other words, even if the marriage has taken place outside the boundaries of New York, either one or both of the spouses should have lived within New York with statuses as proof filed with the State. The pretext for divorce should also have occurred while the partners resided in New York.
3. Understanding the nature of divorce
Let us now move on to understanding the nature of divorce. There are two types of divorces regarding the nature of the NY divorce process.
Uncontested Divorce
New York counts as a state with recognition of no-fault divorce. A ‘no-fault divorce’ is basically the nullification of a marriage based on issues such as a lack of compatibility and mutual agreement to part ways.
This is usually an uncontested divorce in which partners settle financial matters, child custody and other matters with mutual consent.
If you have been living under a Separation Agreement for at least 6 months and have no children under 21, the DIY Uncontested Divorce Program will assist you.
The court can indicate these agreements or mutually agreed upon by both partners through a legal services provider. The good news is that the uncontested divorce process isn’t too complicated with a good lawyer.
Contested Divorce
A contested divorce usually takes longer to complete and can be filed on the grounds of abuse, abandonment, adultery or imprisonment for at least 3 years.
You and your partner may sometimes have different views on all the aspects of the settlement, such as custody and equity distribution. The entire process can become messier than a no-fault divorce.
4. Gathering Necessary Information and Filing
In New York, the process for divorce requires the Plaintiff to provide legal information, addresses, details of any joint assets, papers outlining any agreed-upon settlements for uncontested divorce- if you have one- and any protection orders before filing.
Following that, you need to file the following documents in the County Clerk’s Office or using the electronic portal of NYC courts NYSCEF
- “Summons with Notice” or “Summons and Complaint.”
- Notice of Automatic Orders
- Notice Concerning Continuation of Healthcare Coverage
- Settlement Agreement if you have one
- Supplementary paperwork must be submitted in case of shared children under 21, filing an Uncontested Divorce Packet with the State.
All forms for contested and uncontested divorce can be obtained online at http://ww2.nycourts.gov/divorce/forms.shtml.
5. Serving the Summons
What’s next? Serving the Summons to the Defendant, which is handing over “Summons with Notice” to the Defendant by a third party (above the age of 18) within 120 days of filing the case with the County Clerk’s office.
The person responsible for serving should submit an “Affidavit of Service,” providing County Clerk’s Office attested evidence of delivery and receipt of Summons.
If this fails, the Defendant has no information on where the papers can be handed over to Defendant, and the court provides Substituted and Conspicuous Services.
6. Responding to Spouse
After serving the sermons, the defendant may or may not object to the pre-settled agreement in an uncontested divorce.
Usually, the defendant responds in one of the following ways within a 40-day framework of receiving the papers:
- They might “Answer” – by objecting to the grounds on which the divorce was filed or by refusing to adhere to any prior arrangements. This makes the divorce contested and requires legal advice to continue further.
- They might accept and sign an “Affidavit of Defendant,” which is an agreement from the Defendant’s side to agree to the terms of the divorce without any reservations.
- They might not answer at all; this makes Defendant default. In cases like these, the Plaintiff benefits from the divorce terms.
7. Set a Court Date
If the divorce is still uncontested, you and your spouse can mutually decide on a date to complete the remaining forms, along with a “Note of Issue” for immediate filing with the County Clerk.
In case of a contested divorce, you then have to take the case to court to settle the terms on which the partners disagree. This, however, can lead to a disturbingly confrontational environment for both parties.
If, however, the Defendant fails to answer the Summons and defaults, the Plaintiff, which in your case is obviously you, can file the remaining papers in the County Clerk’s Office and, finally, complete the process. Yeah, that’s when you can breathe a sigh of relief.
8. Time for Judgment
After completing the NYC divorce process steps, the final decision rests in the hands of the Judge.
In an uncontested or defaulted divorce, the papers are submitted to the County Clerk’s Office as soon as the Judge signs the verdict. That’s when the divorce is made official.
However, it may take months to finalize a contested divorce due to the inability of spouses to reach a mutual agreement.
You need to give a signed copy of the Judgment and “Notice of Entry,” personally or through the mail by a third party to the defendant.
Also provide an “Affidavit of Service” to the County Clerk’s Office to ensure the right delivery of the judgment.
New York State is not typically a part of the 50-50 equity distribution club and has governance laws to divide marital assets and debts between the parties. The factors taken into consideration are mostly related to the financial stability of each spouse.
Similarly, alimony is only rewarded when it befits one party to pay for the other party’s financial stability. This is done after careful scrutiny of both past and present financial contributions and earnings.
In resolving issues related to child custody and welfare, the decision aims to serve the child’s mental, emotional and physical interests. The decision on physical and legal custody is made after considering each parent’s proximity, history, lifestyle etc.
Finally, you need to design a settlement to help the child prosper, even if the parents are no longer part of a marriage.
How Long Is the Divorce Process in NY
The length of time for a contested divorce process to complete, as per the regulations of New York State regulations, depends on several factors, such as:
- Custody issues, especially when it comes down to the payment of child welfare
- Possession of highly valued joint assets, for example, real estate properties, stocks etc.,
- The immense amount of paperwork involved, for example, when calculating the value of assets or retirement benefits
- The mere inability of spouses to settle their terms
- Even the Judge or county- for that matter
But according to leading law providers in New York State, a contested divorce might take approximately 9 months to a year for both parties to reach a divorce settlement.
On the other hand, when both parties agree to significant terms of the divorce settlement, it takes around 3 months to complete the process.
To ensure a quick divorce trial, it is crucial to have the best family lawyers at hand and ample information about the legal proceedings of the divorce process in New York State.
Do you have to be separated for a year to get a divorce in New York?
According to §170 of Domestic Relations Chapter 14, ARTICLE 10, one of the seven “grounds” for starting a divorce process in New York is the separate living of spouses for at least one year after signing a Separation Agreement, abiding by the terms dictated by the agreement.
The court can provide these agreements or be drawn up mutually through legal assistance firms. Submission of valid proof and accompanying documentation helps form a basis for filing a divorce petition in New York.
In some cases of no-fault divorces, “irretrievable breakdown in relationship for a period of at least 6 months” is used as a ground. Simply put, this means that both spouses have been living separately for at least 6 months, and the marriage has completely ended during that period.
However, the divorce is only granted once and if the Judge conducts a fair trial and scrutiny of marital property distribution.
How much does it cost to take a divorce in New York State?
The psychological trauma caused by a divorce is the single largest emotional cost of ending a marriage. When it comes to numbers, the cost of an uncontested divorce amounts to between $335 and $350, including filing and court fees. This figure doesn’t include the expenses of hiring a lawyer, transportation, notary fees, process server fees, mailing and photocopies.
Following is the cost structure provided by the official website of New York City Courts for filing a divorce:
- To obtain an Index Number after filing a divorce petition with the County Clerk’s Office- $ 210.
- Note of Issue – $ 125 or $ 30.
- Request for Judicial Intervention or Mediation – $ 95 or no fee.
- The cost of a Certificate of Dissolution varies for each county
- Certified Copy of the Judgment costs approximately $ 4 – $ 10.
However, if you are cash-strapped, the court may even waive some of the fees after you provide it with an application and proof of income supporting the claim.
You can obtain these forms online at https://www.nycourts.gov/LegacyPDFS/divorce/pdfs/Divorce-Packet-Instructions.pdf along with complete instructions to complete the process of divorce as per the laws of the Empire State.
The cost structure above is just the minimum cost of starting the process. When a divorce is contested, attorneys’ legal fees can amount to thousands of dollars, along with per-hour mediation fees and courtroom charges. The more complex the divorce, the higher the cost of reaching a settlement amicable to both parties.
Hire an expert family lawyer for the divorce process in New York
With an exhausting process, it is always suggested to engage expert legal advice. Not only do family lawyers take care of filling, compiling and submitting lengthy documents, but they also know the red tape of legal systems.
Instead of risking losing custody of children or valuable assets in a divorce process in NY, hiring a divorce attorney in New York with sound and objective opinions is best.