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Posted on November 21, 2022

What Is the Divorce Process in New York Like?

Like most legal processes, filing a divorce can seem daunting for most people. Everyone has heard stories about how filing for a divorce can be a time-consuming, pricey affair. Though it may be tempting to go at it by yourself, it is important to consider getting the help of a skilled New York divorce attorney. An attorney can prepare and verify your documents to prevent costly mistakes. An attorney can also help save you the grief it would take to negotiate and meet with your spouse in the event of a contentious divorce. 

At the Law Office of Richard Roman Shum, we provide quality and compassionate legal counsel and representation to individuals seeking to file a divorce in New York. Contact us today at (646) 259-3416 to schedule a complimentary consultation with one of our experienced New York divorce attorneys.

Uncontested Divorce

An uncontested divorce is a kind of divorce where both spouses are in agreement on the terms of their divorce. This means that they have settled on the major aspects of their divorce such as child support and custody, visitation, asset distribution, spousal support, etc. While the process of an uncontested divorce may be easier compared to a contested divorce, it is still advisable to retain the services of a skilled New York uncontested divorce attorney especially if your spouse has a lawyer of their own.

Preconditions

To file for a divorce in New York, you must meet the following preconditions:

  • Residency Requirements
    • Either you or your spouse must have been living in New York for at least two continuous years before filing the divorce
    • Either you or your spouse must have been living in New York for at least one continuous year before filing the divorce and:
      • You were married in New York
      • You and your spouse lived in New York as a married couple
      • The grounds for the divorce happened in the jurisdiction of the state of New York
    • Both you and your spouse are New York residents when the petition for divorce is filed and the grounds for divorce happened in the jurisdiction of the state of New York
  • Grounds for Divorce
    • Irretrievable breakdown of the relationship for at least six months (by far the most common)
    • Cruel and inhuman treatment
    • Abandonment
    • Imprisonment
    • Adultery
    • Legal separation agreement conversion into a divorce
    • Judgment of separation conversion into a divorce

If you do not meet both of these requirements, you may not be able to file for a divorce in New York.

Step 1: Filing

Like in most legal cases, divorce in New York also designates the parties as a Plaintiff and a Defendant. The Plaintiff is the spouse who files for the divorce, and their husband or wife is designated as Defendant.

The Plaintiff will need to pay a fee of $210 to have an index number assigned to the case. In the case that the Plaintiff does not have the financial capability to pay for the fee, it is possible to ask for the court fees to be waived.

If you and your spouse have agreed to the terms of your divorce and have an existing Settlement Agreement, you may also file it at the same time as filing for the divorce to be initiated.

As there are grounds allowing for divorce even if the Defendant is not present, a Plaintiff can petition for a divorce in absentia in New York. 

  • If the Defendant fails to respond to the court summons, a divorce by default may be obtained
  • Divorce by publication may also be an available option if the Defendant is unreachable. Serving a divorce by publication is considered an alternative service.

STEP 2: Serving the Defendant

Informing the Defendant that the Plaintiff has filed for a divorce is an important step in the divorce process. This is to ensure that the Defendant’s rights are also protected. A Summons With Notice (or a Summons and Verified Complaint, depending on the grounds for divorce) needs to be delivered to the Defendant.

A copy of the following documents must be served to the Defendant along with the summons, with the appropriate index number indicated on each document:

  • Notice of Automatic Order
  • Notice Concerning Continuation of Health Care Coverage

If the Defendant will not contest the grounds of the divorce (including aspects like child custody,child support, etc.) and can return the “Affidavit of Defendant” signed and notarized, the Plaintiff can directly be given to the Defendant. However, if you are unsure whether the Defendant will contest the divorce or will return the affidavit, the papers must be “served” to the Defendant.

Service

New York law requires that the Defendant in a divorce receive the Summons with Notice or Summons and Verified Complaint personally, barring specific exemptions. 

  • A Plaintiff in a divorce action cannot serve the papers themselves, but must have another legal adult (18 years and above) deliver the papers to the Defendant. 
  • The papers must be served 120 from the date when the papers were filed with the County Clerk
  • If the Defendant is currently residing in New York, the server for the divorce must be a New York resident. If the Defendant is being served out of New York jurisdiction, the server must be a person who can serve the divorce papers according to the law of that state.

The server must fill out an Affidavit of Service and return the document to the Plaintiff as proof that the Defendant was served in accordance with the law.

As mentioned, there are cases wherein service might be done unconventionally. 

  • If the Plaintiff cannot locate their spouse, it is possible to request permission from the court to publish a notice in the newspaper or at the courthouse indicating the divorce. 
  • On March 2015, New York County declared a landmark decision allowing a Plaintiff who had no other viable alternatives to service to serve the divorce papers through Facebook (Baidoo v Blood-Dzraku: 2015 NY Slip Op 25096)

It is important to seek the help of an experienced New York family law and divorce attorney to be able to understand the available options for you if you would like an alternative way to serve your divorce papers. Contact the Law Office of Richard Roman Shum today at (646) 259-3416 for a free consultation. Our skilled New York divorce attorneys may be able to help you explore your options with regard to service and advise you on other aspects of your divorce.

STEP 3: Defendant’s Response

After service of the divorce papers, the Defendant can respond in three ways:

  • The Defendant can file an Answer with the Supreme Court. The Plaintiff would need to be served with the Answer. With this step, the divorce will turn from an uncontested divorce to one that is contested. Getting the help of a skilled New York divorce lawyer is recommended.
  • The Defendant can sign the Affidavit of the Defendant which formalizes their agreement to the terms of the divorce and accepts the conditions of the Summons With Notice or Summons and Complaint. The divorce action proceeds to calendaring.
  • The Defendant does not respond. This is called a divorce by default. The divorce action moves to calendaring.

STEP 4: Calendaring

Should the Defendant sign the Affidavit of Defendant or not respond after service (default), the process for uncontested divorce proceeds through completing the rest of the papers. The divorce papers will need to be filed either at the County Clerk’s Office or the Supreme Court Clerk’s Office

If the Affidavit of Defendant was signed and notarized, the rest of the papers may be filed with the County Clerk as soon as they are received by the Plaintiff subject to a $125 filing fee.

STEP 5: Judgment

The judge will sign the judgment of divorce once the divorce action is approved. The Defendant must be notified and served a copy of the signed judgment for the divorce to be finalized. This includes a subsequent Affidavit of Service to indicate the successful service of the decision. The judgment must also be filed with the County Clerk’s office.

Contested Divorce

The process for filing a contested divorce is roughly the same as an uncontested divorce. The shift in the process will branch out the moment the Defendant indicates that they do not agree with the terms of the divorce after being served the papers.

Once the Defendant files and serves the Plaintiff with their Answer, a Request for Judicial Intervention (RJI) must be filed within 45 days from the service of the Summons with Notice or Summons and Complaint. If a Notice of No Necessity is filed by both parties, the Request for Judicial Intervention must be filed within 120 days. Filing the RJI costs $95.

A preliminary conference will be held within 45 days of filing the RJI which will initiate the process of the exchange of papers and information between the parties. One of the major documents to be exchanged and filed with the court is the spouses’ individual Net Worth Statements. A compliance conference may also be ordered by the court if necessary.

After some additional conferences and meetings where the attendance of both parties may be required, Discovery must be completed with the Note of Issue being filed within 6 months from the preliminary conference. Discovery is the process in which both parties collect evidence on the grounds of the case, either from the opposing party or third-party sources. Discovery may be necessary in cases where there may be conditions like domestic abuse or adultery that require the establishment of supporting evidence. Filing the Note of Issue indicates that both parties are ready to initiate the trial.

In addition to the Note of Issue, a Statement of Proposed Disposition must also be filed. This document indicates the manner in which each spouse thinks the contested parts of the divorce should be resolved by the court. In most cases, the trial will be held within 6 months from the date of the preliminary conference.

One judgment has been indicated on the court records, additional documents must be submitted or mailed to the Matrimonial Clerk’s Office. These documents include the Notice of Settlement, Findings of Fact and Conclusions of Law, and Judgment. This period is crucial as once the papers have been filed and signed, any changes to the settlement agreement may not be entertained easily by the court.

How Can a Divorce Lawyer Help Me?

Whether you are the Plaintiff or the Defendant in a divorce action, the skills and knowledge of a New York divorce attorney can be invaluable. Although hiring an attorney to file a divorce is not strictly required in New York, an experienced divorce attorney can help you keep up with the necessary documents and set your expectations on how each step of the process may take.

Richard Roman Shum, a skilled New York family law and divorce attorney is here to help. Richard understands the impact a prolonged divorce can have on a family. He understands how a divorce can be emotionally and financially exhausting to both parties. At the Law Office of Richard Roman Shum, we aim to provide quality legal services that help alleviate the stress and anxiety of dealing with a divorce. We present a pragmatic but compassionate approach to divorce law in an effort to provide the best possible outcome for our clients.

To schedule a free consultation with Richard Roman Shum, a skilled New York divorce attorney, call us today at (646) 259-3416 or fill out our online form.

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