Any legally married person who meets the state’s residency requirements and has valid grounds for divorce can commence an action for divorce in New York State.
What you should know if you are going through or thinking about a divorce.
Who can file for divorce in the State of New York?
What are New York’s residency requirements/How do I meet New York’s residency requirements?
You will meet New York’s residency requirements if:
Either you or your spouse have been a resident of New York State for a continuous period of at least two years prior to the start of the action; or
Either you or your spouse have been a resident of New York State for a continuous period of at least one year prior to the start of an action, and is a resident of the state at the time the action is commenced, and you either 1) were married in
New York State or 2) lived together as husband and wife in New York State; or
Either you or your spouse have been a resident of New York State for a continuous period of at least one year prior to the start of an action and the grounds for divorce occurred in New York State; or
The grounds for divorce occurred in New York State and both you and your spouse are New York residents at the time the action is started.
How is a divorce action started?
A divorce action is must be commenced in New York State Supreme Court, and is properly brought within the county where either you or your spouse reside. The action is commenced with the purchase of an index number (for which the fee is currently $210.00) and the filing of either a 1) Summons with Notice, or 2) Summons and Verified Complaint (together with required notices pertaining to health care insurance and certain automatic orders) with the County Clerk’s office.
The spouse who starts the action (who is designated the “plaintiff” in the action) must then arrange for the other spouse (who is designated as the “defendant” in the action) to be personally served with the divorce papers which were filed with the Court within 120 days of the start of the action. For this reason, it is advisable that the plaintiff determine the defendant’s location for purposes of service prior to starting an action. Once a matrimonial action is commenced, certain automatic orders immediately become effective which prohibit both parties from transferring assets, incurring unreasonable debts, or making changes to insurance coverage while the divorce case is pending.
What if I cannot afford to pay the court fees to commence a divorce?
If you are on public assistance or have low or no income, you may be able to have your filing fees waived by filing an application with the Court for a fee waiver (also known as “poor person’s relief”). The application will include a notarized affidavit from you explaining your financial circumstances and why you are unable to pay the court fees. You can obtain copies of the necessary forms and/or instructions from the Pro Se Office (also known as the “Office of the Self-Represented”) located in the courthouse. If the Court grants your application, you will not have to pay any fees. However, if the Court denies your application, you will have 120 days to pay any required fees.
How is the defendant served?
The plaintiff cannot serve the defendant himself or herself. He or she must arrange for another person, who is over the age of 18 and unrelated to the case, to make personal service on the defendant. Unless otherwise directed by the Court, personal service requires personal/hand delivery.
If the defendant resides out-of-state, it is preferable to have service made by a New York resident, although this might be costly. If a someone who is not a New York State resident serves the defendant outside of the state, that person must generally be a qualified attorney, solicitor or the equivalent in that other state or nation, or otherwise authorized to serve papers pursuant to the laws of that state or nation. After making service, the server of the papers must complete a notarized affidavit which the plaintiff must file with the Court as proof of service.
Once service has been properly made upon the defendant, the Court may exercise jurisdiction (or authority) over the defendant.
What if I am served with divorce papers?
Depending on how you were served, you may have only twenty days to respond. If you do not respond, your spouse will get a divorce and could receive everything they are asking for in the court papers. By doing nothing, you will only be divorced faster.
If you are served, you should contact either The Legal Aid Society or go to the Help Center, located at each Supreme Court. They will assist you with the paperwork required to respond to the divorce.
What are grounds?
A ground is an acceptable legal reason for divorce. In New York State, there are six fault grounds and 1 “no fault” ground which may form the basis for divorce under New York State law. They are:
Irretrievable Breakdown in Relationship (No-Fault)
Either party must state under oath that the marriage has broken down irretrievably for a period of at least six months. A divorce can be granted on this ground only if all other issues in the action, both economic and non-economic, have either been resolved.
Cruel and Inhuman Treatment
The spouse who files for divorce under this ground must show that the other spouse has been physically, verbally or emotionally abusive to him or her within the immediately past five years, such that it would be unsafe and improper for the plaintiff to continue living with him or her. Proof of specific acts of cruelty are required; a general inability to get along will not rise to the level of cruelty.
In order to file for divorce under abandonment, the spouse who files for divorce must be able to show that his or her spouse willingly and voluntarily abandoned him or her for a period of at least one or more years without any apparent intent to return. A mutually agreed upon separation does not qualify as abandonment.
This ground can be used where the plaintiff’s spouse has has refused to engage in sexual intercourse with the plaintiff for a period of one year or more, without justification or any preventative physical condition. This ground might also be appropriate where the plaintiff’s spouse has excluded the plaintiff from the marital home for a year or more without just cause. This ground is not appropriate where exclusion from the marital home is based on an order or protection or other court order.
Three Consecutive Years Imprisonment
This ground will apply if the plaintiff’s spouse has been incarcerated for a periof of three or more consecutive years during the marriage. Use of this ground requires that the spouse’s incarceration occurred after the marriage; a plaintiff cannot use this ground if the marriage occurred after his or her spouse’s incarceration.
For this ground, the plaintiff must be able to show that the other spouse voluntarily engaged in adultery (a sexual relationship with another person) during the marriage. This ground is not frequently used due to the difficulty of obtaining acceptable proof (which must come from someone other than the plaintiff or his or her spouse).
Conversion Divorce after Legal Separation by Separation Decree or Separation Agreement
A divorce can be granted to a husband and wife based on either a Separation Decree or Separation Agreement provided the parties have lived separate and apart and pursuant to the terms of such Decree or Agreement for a period of at least one year. The difference between a Separation Decree and a Separation Agreement is that a Separation Decree is a court order resulting from legal proceedings, and a Separation Agreement is a written agreement voluntarily entered into by and between the parties to the marriage, without court intervention, except that it is filed in Supreme Court. In order to obtain a Separation Decree, the plaintiff spouse must commence an action and allege and prove grounds, but there is no such requirement with a Separation Agreement.
What kind of relief can be sought in an action for divorce?
Parties to a divorce action may ask the court to grant different kinds of relief, including temporary relief meant to last only while the action is pending, and also final relief which is usually determined in the final stages of the case. Types of relief may include, but may not be limited to:
Custody and/or Visitation
Either parent may ask for custody or visitation of and/or with any minor children of the marriage. When determining such issues, the Court will generally consider what is in the best interest of the children. If such issues are contested, and any party is financially unable to obtain private counsel, the court may assign that party a court-appointed attorney for the custody and/or visitation issues only.
The parent with whom the marital children live may ask for an award of child support for any unemancipated children under the age of 21. Child support is either based on the parents’ incomes (and determined pursuant to a formula set forth in the “Child Support Standards Act”), or where the income of the parent with whom the children do not live (the “non-custodial” parent) is either unknown and/or cannot be determined, may be based on the children’s needs. Child support typically includes basic support, which is generally meant to contribute to the children’s food, clothing and shelter, as well as additional amounts for unreimbursed health care expenses and reasonable and necessary child care expenses. In determining child support, the Court must determine which parent will be held responsible for maintaining the children’s health insurance coverage, and if the parent with whom the children do not live has employer-provided health insurance, the parent with custody can ask that the other parent include the children under his or her health care plan.
Equitable Distribution of Property
When getting a divorce, both spouses are entitled to an equitable (or fair) portion of any marital property, and may likewise be assigned an equitable portion of any marital debt. Marital property includes assets and debts obtained by either spouse during the marriage but before any legal separation or divorce case is filed. Marital property may include property such as a house, car, bank account, pension, stocks, and/ or household items. Property can be considered marital even when it is held in the name of one spouse alone. Property acquired before the marriage is considered separate property and is generally not subject to division in divorce. In addition, gifts received by one spouse from a person other than his or her spouse, an inheritance, and/or compensation received for personal injuries are generally considered to be separate property.
In a divorce, one spouse may request maintenance, formerly known as alimony, from the other spouse. Under current law, the Court uses a formula to help it determine whether an award of maintenance might be appropriate in any given case. The formula, however, results in a guideline amount which the court may consider in making its final decision, but from which it can also deviate based on the individual circumstances of the parties. Generally, maintenance is less likely when the length of the marriage was short, and/or the parties are relatively young and healthy, and/or the other spouse earns a low income or has little property. Final orders of maintenance are usually for a set period of time.
Order of Protection
If there has been a history of domestic violence in the marriage (e.g., physical, verbal and/or emotional abuse) and one spouse has reason to fear that the other spouse is a threat to his or her safety, then that spouse may ask the Court for an Order of Protection. Such an order may require the other spouse to refrain from abusive behavior and/or to stay away from the home or workplace of the spouse seeking the Order.
Exclusive Occupancy of the Marital Home
One spouse may ask to be allowed to remain in the marital home to the exclusion of the other spouse. In deciding whether a spouse should be ordered to move out of the marital home, the Court will consider several factors, including whether there has been a history of domestic violence, the presence of children in the marital home, and/or the duration of the marriage.
A party to a divorce may also request other forms of relief such as life insurance and/or the legal use of a pre marriage surname, for example.
Temporary or “Pendente Lite” Relief:
Any type of relief that a party may seek in a final order may also be sought and granted on a temporary basis while the divorce action is pending. For example, the Court may issue temporary orders of custody, visitation, child support, maintenance, protection, exclusive occupancy of the marital home, addressing insurance coverage, and/or related to any other matter as deemed proper by the Court.
Do I need a lawyer to represent me? Am I entitled to a lawyer?
Whether or not you will need lawyer will likely depend upon the complexity of your case. If your case will be uncontested and without any disputed issues, you may not need a lawyer. If your case will be contested and involve difficult issues, it is more likely that you might need a lawyer’s help.
Parties to divorce actions are not entitled to the assistance of counsel, except that if the case involves contested custody and/or visitation matters, or an order of protection, then the Court may appoint a lawyer to represent any party who is determined to be without the financial means to hire a private lawyer. In some cases, where one party has low or no income, and the other spouse has financial means, the Court can direct the other party to pay the legal fees of the spouse who is without means.
What happens if I have a court date?
If you receive a notice to attend a court date, you should read it carefully. It may tell you to go to a specific courtroom, or to bring documents to court.
On the day of court, you should arrive early. Though court cases are usually called at 9:30AM, you have to pass through a metal detector to enter the court house. There may be a wait time to enter the court house so plan accordingly. Also, always dress professional when you are going to court.
If you miss your court date, you should immediately contact an attorney, such as The Legal Aid Society, to determine your next steps. By missing a court date, you may lose your case.
Are family law related court files confidential?
Yes, Family Court and Supreme Court matrimonial files are confidential. Only parties, their attorneys, or someone with written authorization signed by a party to the case may have access to them.
The information in this document has been prepared by The Legal Aid Society for informational purposes only and is not legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. You should not act upon any information without retaining professional legal counsel.