Last Updated on July 4, 2022 by Fair Punishment Team
So you need to file a divorce and you live in the state of New York. At a very fundamental level the question is going to be whether or not your divorce is contested or uncontested. This guide talks about how to fill out divorce papers, reasons for divorce in New York, how to file a divorce online without a lawyer, among other things.
It’s always recommended that you consult with an attorney before starting the divorce process.
Overview
In the state of New York the Supreme Court is the only court that actually will handle divorce cases. In New York your marriage isn’t final and over until the judge signs the judgment of divorce. Why you can’t get a divorce and Family Court Family Court can help you with issues of custody, visitation, and child support. That’s gonna happen before you file for divorce. The state of New York does not recognize common law marriage except in some circumstances.
To meet residency requirements you must have either lived continuously in the state of New York for at least two years before the divorce cases started or Have been married in the state of New York and continuously living in the state of New York for at least one year before the divorce is started or both you and your spouse or residence in New York on the day of the divorce started in the grounds for divorce happened in the state of New York.
How do I fill out New York divorce papers?
The actual process of filing a divorce in the steps you take will depend on whether the marriage is contested or uncontested. If the divorces uncontested there are forms available online for you to fill out. If the divorce is a contested divorce one of the big differences is that you’ll need to request for judicial intervention.
That request for judicial intervention must be filed no later than 45 days from the service of the summons with notice or summons and complaint. To get the case started you’ll need to first obtain what’s called an index number from the county clerks office which has a fee of $210 and there after file the summons with notice or summons and complaint.
You’ll obtain a file stamped copy of the summons with notice or summons and complaint from the county clerk for the next step. These documents meaning a copy of the summons with notice or summons and complaint with the county clerks index number and filing date stamped on it must be delivered to the defendant personally in almost all circumstances.
Personal service must be made on the defendant by a person at least 18 years of age or older who is not a party to the case. Service is not allowed to be made on Sunday. The previously mentioned request for judicial intervention filing fee is $95.
Tell me the reason for divorce in New York?
The reasons for divorce are also referred to as grounds and there are seven grounds which are all legally acceptable for reasons to get a divorce in the state of New York.
Number one is cruel and inhumane treatment; for this ground to be applicable the judge will be looking for a specific acts of cruelty that happened during the last five years which must rise to the level where the plaintiff is physically or mentally endanger and it is unsafe or improper for the plaintiff to continue living with the defendant.
Number two abandonment; for this grant to be applicable to spouse must have a banded the plaintive for at least one year or more.
Number three imprisonment; for this crown to be applicable the spouse must have been in prison for three or more years in a row.
Number four adultery; for this crown to be applicable the plaintiff must show that the spouse committed adultery during the course of the marriage which is often times hard to prove because of the evidence needed.
Number five irretrievable breakdown in relationship for a period of at least six months; this is also referred to as no-fault divorce and for this to be applicable the marriage must be over for at least six months and all the issues that are economic must be settled such as debt, marital property division, and child custody and support issues.
Number six divorce after a legal separation agreement; for this ground be applicable to plaintiff and defendant must sign and file a valid separation agreement and live apart for one year or more.
Number seven; divorce after judgment of separation; for this grounds to be applicable the supreme court draws up a judgment of separation in the married couple live apart for one year or more.
File for divorce online in New York without a lawyer
As touched on previously, being able to file a divorce using online forms is most typical when the divorce is uncontested. There are forms available online for filling out a divorce in the state of New York without an attorney but keep in mind all of the regular filing and notice requirements are still in effect and must be followed.
The online forms available typically just collect the necessary information to complete the divorce such as names, addresses, contact information and financial information.
It’s important to remember that even though you may be using online forms to file a divorce, you are still required to have the divorce papers served on your spouse in accordance with New York law.
Compare your options for filing for divorce in New York
The big options at issue for filing a divorce in the state of New York largely center around whether or not a party is going to be represented by an attorney. There are divorce tools that are going to be available for any party but understanding what those tools are in whether or not there appropriate in your particular case is often better explained by an attorney. These types of divorce tools include things like whether or not to obtain an appraisal, a business valuation, custody evaluation, and similar items.
Filing the Summons and Complaint or Summons with Notice
Filing for the summons and complaint or summons with notice we discussed previously in the section about how to fill out divorce papers. These papers can be quite complicated and it’s often best to talk to an attorney for your situation to understand and make sure that you’re filling out the forms correctly. Largely these forms depend on whether or not the divorce is going to be contested or uncontested. It will also depend on weather and to what extent you’re relying on grounds for the divorce.
The grounds that you choose for a divorce will necessarily affect the period of separation that’s necessary before filing the divorce paperwork. A summons is served with the complaint and requires the defendant who has been served to answer the allegations and claims of the plaintiff. In divorce cases, this is also referred to as a Summons with Notice.
Divorce with no children
This is often times referred to in the uncontested divorce program which has certain requirements before you’re eligible for the programs such as that you and the person that you want a divorce from her 18 years of age are over, that you and the other person that are going to get the divorce have no children under the age of 21, your marriage has been over for at least six months and your relationship can’t be saved, and all the marital property issues such as dirt and property division have already been settled.
Divorce with children in New York
When there are children in the divorce case a final judgment will not be signed by the judge until all of the issues related to the children in the divorce case such as custody, visitation, and child support have been worked out.
This does not apply to all the children but was referred to as children of the marriage which means that the children who are 20 years old or younger and born or adopted to both you and your spouse before during the marriage. For all of the children in the marriage the child support must be decided before the divorce is granted and for all children of the married 17 years old or younger the issues of custody visitation must be decided before the divorce is granted.
The issues of custody, visitation, and child support can be determined as part of the divorce case itself but these issues can be very time-consuming. It’s also possible to file your case in Family Court and deal with the issues of custody, visitation, and child support before filing for a divorce. It should be noted that it is free to file a case in Family Court.
Can I get maintenance (spousal support)?
Spousal support is a court order requiring one spouse to pay another spouse money for maintenance or temporary maintenance. How much the spousal support is paid will depend on a presumptive formula calculation. The amount of spousal support to be paid depends on each spouses’ income which can be calculated from the state of New York’s court system website. Once a support order has been given it can be changed only upon a substantial change in circumstances.
Child Support in New York
The court decides how much child support a parent is going to pay based on the formulas guidelines. First the court must determine the total income of each parent which includes things like wages, veterans benefits, unemployment insurance benefits and Social Security benefits income does not include supplementary security income. The court will exclude any income from child support paid for any other children and some types of taxes.
The court that multiplies to combine income by a percentage for instance 17% for one child, 25% for two children, 29% for three children, 31% for four children, and 35% for five or more children. Next the court will divide that amount based on each parent income. The court next decides whether or not the formula is a fair calculation considering several factors of fairness.
FAQs
This article has set out its topic areas intending to ask commonly asked questions, such as how to file a divorce in new york courts website.
Can I get a divorce if my spouse and I still live together?
In most circumstances the answer is yes, however it’s unlikely that you will qualify for filing a separation agreement.
How many years can I expect to receive post-divorce maintenance?
The judge can limit how long the maintenance period of spousal support is to last however for a marriage lasting up to 15 years maintenance is expected to last 15% to 30% of the length of the marriage and for marriage is last in 15 to 20 years the maintenance period is expected to last 30% to 40% of the length of the marriage and finally for marriages last year for more than 20 years maintenance is expected to last 35 to 50% of the length of the marriage.
Can I get child support?
Yes, if the child lives with you more than half the time. Most of these questions are most easily answered by visiting New York Child Support Online.
What if your spouse contests divorce?
Because the state of New York is now a no fault divorce state even if your spouse contest the divorce it is not likely to affect the outcome of whether or not the divorce will be completed. The contesting a divorce may impact when you’re able to actually file for the divorce, but it will not affect whether or not you’re able to ultimately obtain a divorce.
What are the requirements to get a divorce in New York?
As discussed previously, you must be meet residency requirements and have the proper grounds for divorce.
How much does it cost to divorce in NY?
There is the initial index fees, and after that it will depend largely on whether or not the divorce is contested and whether or not you need to hire an attorney.
How long does a divorce process take in NY?
An uncontested divorce in New York will take substantially less time than a contested divorce, but it will also depend on whether you’ve met the initial requirements necessary for filing. If all of the basic requirements are met it’s possible to complete an uncontested divorce in a matter of weeks. A contested divorce in New York can take from 6 months to several years to complete.
How long do you have to be separated before you can file for divorce in NY?
The answer to this question depends largely on the grounds for which you are applying for a divorce upon. Each grounds potential has a different separation period.
How to serve divorce papers in New York?
The process of delivering the divorce papers is formally known as service and the person who does the delivery is referred to as the process server.
As touched on briefly above, personal service which just means hand-delivering the papers to the spouse is required in almost all circumstances.
The papers must be delivered to the spouse in person and generally, the process server will need to complete an affidavit of service which is then filed with the court.
New York does allow for some alternative methods of service under certain circumstances but it’s always best to check with an attorney or your local court to see if those methods are available and if they would be appropriate for your particular case.
What are the grounds for divorce in New York?
The grounds for divorce in New York are as follows:
- Cruel and inhuman treatment;
- Abandonment for a period of one or more years;
- Living apart pursuant to a separation judgment or decree or separation agreement for a period of one or more years;
- Adultery;
- Conviction of a felony resulting in imprisonment for a period of three or more years;
- A divorce may also be granted on the grounds of irretrievable breakdown of the marriage which must be proven by living apart for a period of six months or more pursuant to a separation judgment, decree or agreement.
Conclusion
Thank you for reading this article, and hopefully it is useful in your journey for information on how to file a divorce in New York. Please consult with an attorney before making any legal decisions.
