To file for divorce in New York, you need the residency requirement, to prepare the required documents, to file the documents with the court, and to serve summons on the other spouse.
Contested vs. Uncontested
Contested and uncontested divorces are filed in different departments of the court and use different form sets, so it’s important to figure out which route you’re taking before beginning the process.
A divorce is uncontested when both spouses agree on all aspects of the divorce: property settlement, custody, child support and spousal support (maintenance). A divorce can also be uncontested when one spouse does not answer despite being served with summons, either personally or by publication.
The divorce is contested when parties do not agree on all aspects of divorce. Usually, parties do not agree on custody, spousal support, and property settlements.
In cases of contested divorce, it is best that you are represented by an attorney to ensure your rights are protected and you get what you are entitled to. Negotiating your divorce settlement without an attorney can have negative lifetime consequences. If you are looking for a divorce attorney, we at the Law Office of Albert Goodwin are here for you. You can call us at 718-509-9774 or send us an email at email@example.com.
To file for divorce in New York, either of the spouse must have resided continuously in New York for at least two years before filing for divorce in New York. This two-year residency requirement can be reduced to one year if one of the following applies:
- the couple got married in New York
- the spouses lived in New York as a married couple
- the grounds of divorce took place in New York
If the ground for divorce happened in New York and both spouses are residents of New York on the date the action for divorce is filed, the action for divorce may prosper even without fulfilling the one- or two-year residency requirement. New York Domestic Relations Law (DRL) § 230.
Grounds for divorce
Under DRL § 170, a person can file for divorce under one or more of the following grounds:
- irretrievable breakdown in relationship for a period of at least 6 months
- cruel and inhuman treatment
- divorce after a legal separation agreement
- divorce after a judgment of separation
Since New York is a no-fault state for divorce (the reason for divorce doesn’t matter and has no impact on the case), most spouses use the first ground, irretrievable breakdown in relationship for a period of at least 6 months, as basis for the divorce, since this ground is considered as no-fault divorce.
Filing your divorce forms
Once you determine that you have the residency requirement, you initiate the action for divorce by filing the divorce forms with the Supreme Court in the county that has jurisdiction. The clerk of court will give you an index number which will serve as the case’s reference number throughout the entire proceeding. There is an uncontested divorce packet in the New York Court’s website that you can use for this purpose: https://ww2.nycourts.gov/divorce/divorce_withchildrenunder21.shtml
Once your initial divorce forms have been filed and you already have an index number, you can serve your spouse with a summons with complaint or summons with notice. If your spouse cannot be found even with the exercise of due diligence, you can request the court to serve your summons by publishing the notice.
Service to your spouse must be made within 120 days from filing. Once summons has been served, the process server has to submit an affidavit of service with the court.
You cannot serve the summons upon your spouse. The process server must be over 18 years old, not a party to the case, and a resident of New York. In some areas of New York, such as in NYC, the process server must be licensed.
Once served, your spouse has 20 days to file the answer. If the divorce is uncontested, the spouse files an affidavit of defendant. If the divorce is contested, the spouse files an answer. If your spouse doesn’t answer, the court can render a judgment of divorce by default.
There are several other forms that need to be filed depending on the circumstances of the case. Some of these forms are:
- Notice of automatic orders
- Notice of guideline maintenance
- Notice concerning continuation of health care coverage
- Sworn statement of removal of barriers to remarriage
- Affidavit of regularity
- Annual income worksheet
- Maintenance guidelines worksheet
- Child support worksheet
- Note of issue
- Judgment of divorce
- Request for judicial intervention
- Notice of settlement
Filing a divorce may be complex depending on the circumstances of your case. Should you need assistance in divorce settlement agreements or filing for divorce in New York, we, at the law offices of Albert Goodwin, are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at firstname.lastname@example.org.