- Filing a New York divorce petition
- Serving the documents
- Spousal response
- What happens next
- Uncontested vs. contested divorce
Getting a divorce in New York can seem daunting. However, when you understand the process, it becomes much easier to follow.
Divorce in New York: Before filing the petition
When it comes to divorce, every state has its own process. In New York, specific requirements must be met before you can file for divorce.
The first thing you need to know is that New York imposes a residency requirement before you can file: You or your spouse must have lived in the state for at least one year prior to filing. If you are getting divorced based on cruelty or adultery, you only need to meet the residency requirement at the time you file. This means that if you or your spouse move out of New York before the divorce is finalized, it will not affect the process.
Another important fact to know is that New York is a no-fault divorce state. Neither spouse must insinuate or prove that the other did something wrong in order to get the divorce. Instead, they can simply show that the marriage is irretrievably broken.
That said, you can also get a fault divorce in New York in certain situations. If you want to get divorced based on adultery, abandonment, or cruel treatment, you may do so under New York's fault-based divorce law. This may (or may not) impact a judge’s decisions about alimony or custody arrangements.
Filing your New York divorce petition
To file for a divorce in New York, you must fill out and submit a divorce petition. If you’re not working with an online divorce platform like Hello Divorce, you will need to retrieve the petition on your own. The New York divorce petition can be obtained from the family court in the county where you or your spouse live. You can also get the form online through the New York State Unified Court System website.
Along with the divorce petition, other forms that may be required include the summons and notice of automatic orders. The summons is a document that informs your spouse that you have filed for divorce and includes important information about the legal proceedings. The notice of automatic orders is a document that requires both parties to refrain from certain actions during the divorce process, such as selling property or removing a child from the state.
Once you have completed the necessary forms, they must be filed with the court. In New York, divorces are filed in the Supreme Court of the county where either spouse resides. There is a fee to file for divorce, but it can be waived if you meet certain income requirements.
Unlike some states, New York does not have a divorce waiting period. While the time it takes to complete a divorce varies, you're not required to wait a certain amount of time before a judge can issue a final order.
Serving your documents
Serving divorce papers in New York can be accomplished in several ways. The most common is personal service. This means that a process server or someone over the age of 18 who is not a party to the case physically hands the papers to your spouse.
You can also use substituted service. If your spouse cannot be personally served, the papers can be given to someone else at their home or place of work and then mailed to them by first-class mail with a notice of the divorce action.
Spouse responds to petition (or fails to respond)
In New York, a person has 20 days from the date they were served with the papers to respond. If they were served out of state, they have 30 days to respond.
A spouse who has been served divorce papers has several options. They can:
- Contest the divorce: If they disagree with any of the terms in the divorce papers, such as child custody, support, or property division, they may contest the divorce and request a trial.
- Respond with an answer: If they do not contest the divorce, they can respond by filing an answer with the court. This is a written document that admits or denies the allegations in the divorce papers.
- File a counterclaim: In addition to filing an answer, they may also file a counterclaim, which is their own request for relief, such as child custody or support.
Spouse fails to respond
If a person does not respond to the divorce papers, their spouse may obtain a default judgment. This means the court will grant the divorce without any input from the other spouse. By failing to respond, they may lose their rights to negotiate the terms of the divorce, and they may even be subject to unfavorable terms.
What happens next
Once you and your spouse enter the negotiation phase of your divorce, several important issues will need to be decided.
One of the most important issues in any divorce is the division of property. In New York, property is divided according to the principles of equitable distribution. This means that marital property is divided fairly but not necessarily equally.
Marital property includes any property acquired by you or your spouse during the marriage, such as real estate, bank accounts, and personal property. Separate property, which is property acquired prior to the marriage or inherited during the marriage, is not subject to division.
Uncontested vs. contested divorce process
Negotiating the terms of your divorce can be done in two ways: through an uncontested divorce or a contested divorce.
An uncontested divorce occurs when you and your spouse are able to reach an agreement on all issues related to your divorce, including property division, child custody, and support. This is often the most cost-effective and efficient way to get a divorce because it eliminates the need for a trial and can be finalized quickly.
A contested divorce occurs when spouses disagree on one or more issues related to their divorce. If your divorce is contested, you may have to go to trial, where a judge will decide on the disputed issues. Contested divorces can be more time-consuming, expensive, and emotionally exhausting than uncontested divorces.
If you and your spouse disagree on one or more issues, you do not automatically have to go to court. You can enter divorce mediation, a process involving a neutral third party trained in conflict resolution. It’s much cheaper than litigation, but both you and your spouse must be willing to put forth earnest effort.
Once you and your spouse have negotiated and agreed upon all the terms of your divorce, a final judgment will be entered by the court. This judgment will outline all the terms of your divorce, including property division, support payments, and child custody arrangements.
FAQ about the New York divorce process
Is mediation required for my New York divorce?
Mediation is required in New York contested divorces. While you're never required to agree to any terms you don't want to agree to, you are required to attend at least one mediation session.
Can I change my name in the divorce process?
Yes. When you file your petition or response, make it clear that you want to change your name. When your divorce is finalized, the order will change your name.
How can I avoid a trial?
Most divorce cases avoid trial, but there are steps you can take to make almost certain you avoid trial. Hello Divorce can pair you with a mediator and provide legal coaching as needed. We also offer divorce coaching and an array of other resources and services to help you get through this and get ready for your next chapter.