Filing for divorce in New York State involves several steps, each with its own set of legal requirements. Whether you’re pursuing an uncontested or contested divorce, it’s important to understand the process to ensure everything is done correctly. Here’s a step-by-step guide on how to file for divorce in New York:
1. Meet Residency Requirements
In order to file for divorce in New York, you have to fulfill the residency criteria of the state. You can file for divorce if:
- You or your spouse have lived in New York for at least two years before filing.
- You or your spouse have lived in New York for at least one year and were married in New York, lived in New York as a married couple, or the grounds for divorce occurred in New York.
- Both you and your spouse are residents of New York when the divorce is filed, and the grounds for divorce occurred in New York.
2. Determine Grounds for Divorce
New York recognizes both “no-fault” and “fault” grounds for divorce:
- No-Fault Grounds: The most common reason for divorce in New York is an “irretrievable breakdown of the marriage” for at least six months. This no-fault ground does not require proving wrongdoing by either spouse.
- Fault Grounds: These include cruel and inhuman treatment, abandonment for one year or more, imprisonment for three years or more, adultery, or living separately under a legal separation agreement or decree for at least one year.
3. Prepare and File Divorce Papers
The next step is to prepare the necessary divorce documents. The primary document is the Summons with Notice or Summons and Verified Complaint. These documents outline your intent to divorce and any specific demands, such as child custody, support, or property division.
- Uncontested Divorce: If your spouse agrees to the divorce and all related issues, you’ll also need to complete the Uncontested Divorce Packet, which includes forms like the Affidavit of Plaintiff, Affidavit of Defendant, and Settlement Agreement.
- Contested Divorce: If your spouse does not agree, the divorce is contested, and additional paperwork, like a Verified Complaint detailing the grounds for divorce, will be necessary.
Once the forms are completed, file them with the County Clerk’s Office in the county where you or your spouse live. The filing fee in New York is approximately $335, though fee waivers may be available for those with financial hardship.
4. Serve the Divorce Papers
After filing, you must legally serve the divorce papers to your spouse. In New York, you cannot serve the papers yourself; they must be delivered by someone over 18 who is not involved in the case. This can be done by a professional process server, a sheriff, or a friend or relative. Your spouse has 20 days to respond if they are served in New York or 30 days if served outside of New York.
5. Wait for Your Spouse’s Response
If your spouse responds and agrees to the terms, the divorce can proceed as uncontested. If your spouse contests the divorce, they will file an answer, and the case will proceed to the discovery phase and potentially to trial.
6. File Additional Forms
For uncontested divorces, after serving the papers and receiving your spouse’s response, you’ll need to file additional forms to finalize the divorce. These may include:
- Affidavit of Regularity
- Affidavit of Plaintiff
- Affidavit of Defendant
- Child Support Worksheet (if applicable)
- Judgment of Divorce
These documents are submitted to the court for the judge’s review.
7. Court Appearance
In uncontested divorces, a court appearance is usually not necessary. However, in contested divorces, you may need to attend several court appearances, including possibly a trial, to resolve disputes.
8. Finalize the Divorce
Once the judge reviews and approves your paperwork, they will sign the Judgment of Divorce. This document finalizes the divorce and outlines the terms, including any decisions on child custody, support, and property division. You will receive a certified copy of this judgment, which serves as legal proof of the divorce.
Conclusion
How to File for Divorce in New York State requires careful attention to legal requirements and procedures. Whether your divorce is uncontested or contested, understanding each step can help ensure a smoother process. It’s often advisable to consult with an attorney, even in uncontested cases, to make sure all legal aspects are properly handled and your rights are protected.
