the new york divorce process: a basic overview

THE NEW YORK

DIVORCE PROCESS A BASIC OVERVIEW

Once the Decision to End Your Marriage Has Been Made, It Is Prudent to Get Started on the Legalities of Ending

the Marriage as Soon as Possible to Ensure that Your Rights Are Protected During the Divorce

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The New York Divorce Process – A Basic Overview www.simgil.com 2

Making the decision to end a marriage is generally not easy. Once the decision

has been made, however, it is prudent to get started on the legalities of ending the

marriage as soon as possible to ensure that your rights are protected during the

divorce. The amount of time it takes to complete the divorce process in New York

can vary from a few short months to years, depending on the issues involved in

the divorce and on how adversarial the parties to the divorce are. Only an

experienced New York divorce attorney can provide you with specific advice and

guidance; however, the following provides a basic overview of a typical divorce

process in New York.

RESIDENCY – WHO CAN FILE FOR DIVORCE IN NEW YORK?

Before filing for divorce in New York you must be sure that you meet the

residency requirements. In order to file for divorce in the State of New York one


of the following requirements must be satisfied:

1. You or your spouse must have been living in New York State for a

continuous period of at least two years immediately before the date you

start your divorce action; OR

2. You or your spouse must have been living in New York State for a

continuous period of at least one year immediately before the date you start

your divorce action and your grounds for divorce must have happened in

New York State; OR

3. You and your spouse must be residents of New York State (no matter how

long) on the date you start your divorce action, and your grounds for

divorce must have happened in New York State.

4. You or your spouse must have been living in New York State on the date

you start your divorce action and for a continuous period of at least one

year immediately before the date you start the divorce action AND one of

the following is true:

a) Your marriage ceremony was performed in New York State OR

b) You lived in New York State with your spouse as married persons

GROUNDS – WHAT GROUNDS CAN BE USED TO FILE?

Traditionally, a petitioner was required to provide a reason, or “grounds”, for a

divorce or the divorce would not be granted. Times have changed though, and


although the law is sometimes slow to catch up with changing social norms, the

law does now allow a petitioner to obtain a “no-fault” divorce in New York. The

traditional “fault” options, however, remain available to a petitioner. Therefore,

when you petition for divorce in New York you will need to choose one of the

following grounds:

Irretrievable breakdown in relationship for a period at least six months --

this is what is commonly referred to as a “no-fault” divorce

Cruel and inhuman treatment

Abandonment

Imprisonment

Adultery

Living separate and apart pursuant to a separation judgment or decree

Living separate and apart pursuant to a separation agreement

Keep in mind that you will need to prove whatever grounds you allege. In other

words, you cannot simply petition for a divorce based on cruel and inhuman

treatment without providing the court with evidence of same. As such, choosing

anything but “Irretrievable breakdown” as the grounds for your divorce tends to

lengthen the time required to complete the divorce process.


THE COMPLAINT AND ANSWER

To begin the divorce process the Plaintiff (you if you are the one seeking the

divorce) must file a Summons and Notice or Summons and Verified Complaint.

One simply puts the Defendant on notice that a divorce process is forthcoming

while the other notifies the Defendant and provides a copy of the allegations for

the divorce. If the Defendant is served with a Notice and Summons a response

known as a “Notice and Appearance” must be filed with the court within 20 days

letting the court know that the Defendant is participating in the case. The

Plaintiff then has 20 days to serve the Defendant with the actual Complaint. If the

Complaint if served with the original Notice the Defendant has 20 days to file a

formal written answer with the court.

The Complaint is the legal document that sets forth the basic information needed

for the court to claim jurisdiction, the grounds for the divorce and any

corresponding allegations, and asks the court for the relief sought by the Plaintiff

(custody, child support, asset division etc.). The Answer filed by the Defendant

will agree with, deny, or claim a lack of information sufficient to answer all of the

allegations in the Complaint.

If the Defendant fails to file an Answer after being properly served you can ask

the court for a default judgment. Although you will be able to get divorced with a

default judgment, some issues may not be fully resolved because the court lacks

the jurisdiction to resolve them if the Defendant does not appear.


UNCONTESTED DIVORCE

After all of the initial documents have been filed with the court your divorcee can

proceed in one of two directions. If you and your spouse are able to agree on all

of the issues in the

divorce you may be able

to take the uncontested

route. Typically, the

parties to a divorce in

New York must wait 40

days before the case can

be placed on the court’s

calendar; however, if your

spouse waives this

requirement and you have reached a full and complete settlement you may

request a court date immediately. On your court date the judge will review your

settlement agreement and all ancillary forms and sign the decree if everything is

in order.

It cannot be stressed enough that you and your spouse will need to agree on every

aspect of the divorce for you to be able to take the uncontested route. Typically,

only couples who have no minor children and few assets/debts use the

uncontested divorce option.

CONTESTED DIVORCE

If there are any issues on which you and your spouse do not agree your divorce

will proceed as a contested divorce. The next step in a contested divorce is the


discovery process. Discovery requires you to divulge information relevant to the

divorce to your spouse and vice versa. This information may be requested

through legal filings such as a “Request for Production of Documents”,

“Interrogatories”, or through a deposition. A deposition is typically taken at a

lawyer’s office with a court reporter present who will transcribe the deposition.

The person being deposed is placed under oath, just as will occur at trial, and

must swear to tell the

truth. Questions are then

asked and answered in an

attempt to illicit

information relevant to

the divorce proceedings.

Although every divorce is

unique, most contested

divorces are contested

because the parties are

unable to agree on one of two issues – money or children. The amount of money

involved is not important. Couples with extremely valuable assets are sometimes

able to reach a settlement agreement rapidly that divides all assets and debts

while couples with few assets can argue for months over those assets and debts. If

the court is forced to divide assets and debts the court will look for an “equitable

distribution” in New York. Keep in mind this does not necessarily mean the court

will divide assets in half. Instead, the court will try and determine what is fair

with regard to the division of assets.

If the parties both want custody of the minor children of the marriage it can

significantly lengthen the time it takes to finalize the divorce. Home studies will


be ordered and mountains of evidence will ultimately be gathered by both sides

in an attempt to sway the court. Custody battles can be lengthy as well as costly –

both in financial terms and emotional terms.

AGREEMENT OR TRIAL

Once the discovery phase is complete you and your spouse will either reach a

settlement agreement or decide let the court decide some, or all, of the issues in

your divorce. Sometimes the parties are able to agree on many of the issues but

cannot agree on all, requiring the court to decide the remaining contested issues.

If you and your spouse do reach an agreement it will be filed with the court once

signed by the parties. The court

will review the agreement and, if

satisfied, the judge will sign the

Divorce Decree. If the court

decides contested issues the court

will issue its decision in the form

of a final Decree shortly after the

trial.

The divorce process can be complicated and emotionally exhausting even if you

are the one petitioning for the divorce. Although you are not required to obtain

counsel to represent you in a New York divorce it is best to do so, particularly if

the divorce is contested, you have minor children, and/or there are significant

assets/debts of the marriage to divide. As soon as divorce becomes a possibility,

consult with an experienced New York divorce attorney to ensure that your rights

are protected throughout the process.


REFERENCES

New York Courts, Introduction to Uncontested Divorce Instructions

Her Justice, Getting a Divorce in New York State

South Brooklyn Legal Services, What You Should Know

http://www.nycourts.gov/divorce/pdfs/Divorce-Packet-Instructions.pdf

http://www.herjustice.org/assets/pdfs/TheBasicsSeries_English/Getting_a_Divorce_in_NYS.pdf

http://www.sbls.org/index.php?id=51


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