Divorce 101: The Divorce Process in New York

By Michael DiFalco
Partner

The decision to file for a divorce is never an easy one to make, and even when you know it’s the right thing to do, the divorce process can be emotionally and financially taxing; you may not even know where to start. 

Some divorces are simple, but couples who have been married several years, have several assets or large amounts of debt, and those with young children will naturally have a more difficult time agreeing on all the decisions, both large and small, that must be made. In addition, common-law marriages are not generally recognized but may be under certain circumstances.

As such, speaking with a divorce attorney is a recommended first step before anything else, even if your divorce is uncontested, as an attorney can apprise you of your rights, inform you whether your union may qualify as a common-law marriage, and help ensure the process goes as smoothly as possible.

5 Steps to Divorce in New York

Like every state, New York maintains its own laws regarding the dissolution of a legally recognized marriage. The divorce process begins with the plaintiff (the person filing the petition) ensuring that they meet all the requirements needed for the process, which are as follows:

  • Residency requirements
  • Grounds requirements, such as abandonment, adultery, or no-fault which is applicable in 99% of cases
  • Knowing the location of your spouse

If each of these requirements has been met, you are ready to take these next five steps in the divorce process:

1. Gather Your Documents

If your divorce is uncontested, you can file the forms yourself. In New York, an uncontested divorce is one in which both parties agree to all the terms of the divorce or your spouse fails to respond to the divorce complaint. 

Some of the documentation you’ll need to complete the necessary forms includes the following:

  • Date of marriage (no need for the actual marriage certificate)
  • A list of all property that is separately or jointly owned
  • A list of debts you and your spouse have accrued
  • Copy of settlement agreement or other agreements such as a prenup
  • Copies of any orders for protection or police reports that may have been filed

Since every couple’s situation is different, the above is not necessarily a comprehensive list of the documents you will need for preparation. 

2. File the Forms

There are several forms that need to be filled out and filed with the court. The state will provide different filing packets for uncontested divorces depending on whether they have children under the age of 21. 

3. Serve the Forms

Your spouse must be served with all the divorce papers within 120 days of the filing date. The plaintiff is not allowed to serve the forms personally, which means you must hire a service or choose a person over 18 who is a legal resident of New York State to do so for you. 

4. Await a Response

The defendant (your spouse) has 20-30 days to complete and return the forms. If they fail to do so, they are considered to have defaulted (although most divorces do not proceed immediately to a full default). Most people respond on time or once additional pressure like involving the court is applied. However, if they disagree with anything in the documents, the divorce will change to contested status. 

A contested divorce almost always requires the assistance of a divorce attorney, and completing a contested divorce may take several trips to court before a judge makes a final decision.

5. Get a Calendar Date

Once the terms of the agreement have been reached, or If the defendant defaults or agrees to the divorce uncontested, the next step is getting your case on the court calendar. You will need to complete any remaining forms and file them with the County Clerk, and if they are approved, the judge will grant a divorce judgment on the appointed date. 

The steps in between 4 & 5 are unique and vary significantly depending on the case, since cases vary in complexity and animosity, but the negotiation of an agreement or obtaining a decision from the court occur between the pleadings and the submission of the proposed Judgment of Divorce.

Find Skilled Representation for Your New York Divorce

Don’t let yourself be taken advantage of because you’re anxious to proceed with a divorce. The experienced divorce attorneys at Aiello & DiFalco in Garden City, NY, are here to assist you with all the legal aspects of divorce, including child custody cases. Get in touch with our team today.

About the Author
I am a partner at Aiello & DiFalco LLP, and my priority for my clients is to guide them through an arduous court case to provide them with the opportunity to write the next chapter in their life. I tailor my approach to each client’s priorities and positions, and to the extent that matters can be predicted, I will always provide a realistic perspective of how the law could be applied to the particular facts and circumstances of a case. Since I thrive on helping people and solving problems, I bring an optimistic and positive approach to practicing in a very difficult area of law. With more than a decade of experience handling hundreds of cases, I have the ability to get results on the issues my clients view as priorities. When cases or certain issues cannot be settled, I have a solid record of success at trials, hearings, and on appeals. Feel free to contact me for a free initial consultation, I am always available to help.