Divorce
How Long Does Divorce Take in New York?
by Rachael Goldstein, Attorney
A high volume of divorce cases are filed in New York, and the state’s busy judges are frequently delayed. They’ve generated a great deal of legal precedent that a divorce lawyer can tailor to your specific separation.
Certain aspects of a New York divorce will be quicker when compared to other jurisdictions – state law has no mandatory “cooling off period” to slow down divorce proceedings. The amount of time a divorce takes simply varies based on numerous factors specific to your case.
That said, certain reasons for divorce in New York do require meeting time-based criteria. For instance, if irretrievable breakdown is the ground cited for the dissolution of marriage, you must show that your marriage has been broken for at least six months. If legal separation is used as a foundation for filing, then you must have evidence that you have been separated for one year.
Ultimately, divorces in New York typically take at least several months to finalize when all terms are agreed upon by both parties. However, they can take significantly longer if the divorce is contested and issues like asset division or child custody have to be litigated.
Divorce Process in New York
To understand how the divorce process in New York will unfold, you’ll want to understand these legal steps. Here’s what you or your family law attorney will need to do.
These steps apply to an uncontested divorce – situations where your spouse agrees to the divorce and the important issues, such as asset division, child support, and alimony. Additional steps follow if your spouse seeks to contest the divorce.
Step 1 – Obtain Forms and Fill Them Out
To initiate your divorce action, you’ll fill out and file either the “Summons with Notice” (Form UD-1) or “Summons with Verified Complaint” (Form UD-2).
Which of these forms you fill out is really just a matter of detail. They both require you to provide comprehensive information about why you’re seeking a divorce, along with proposals for other requested relief like child support, custody arrangements, asset division, and alimony. A lawyer can advise you on how to structure these proposals in a format the court will accept.
Step 2 – File The Forms
When you’re ready to file for divorce, bring your completed forms to the clerk’s office in the county where you or your spouse resides. There, the county clerk will provide an “Index Number” which must be placed on all submitted documents along with their filing dates.
For most filers, the Index Number fee is $210. If this presents a financial burden for you, ask the clerk about filling out the “Poor Person’s Waiver” form. If you meet certain requirements, you won’t be required to pay the fee.
Step 3 – Serve Your Spouse
Once you’ve filed your divorce papers, the next step is serving your spouse. This must be done within 120 days of being provided with an Index Number. Any person aside from yourself who resides in New York and is over 18 can perform this service.
Personal service is required, which means the documents must be handed directly to your spouse. This can be done on any day except Sunday.
If your spouse consents to the divorce and all the terms, they’ll need to sign and return the “Affirmation of Defendant” form within 40 days.
If your spouse fails or refuses to complete and send back this form, the individual who served the divorce paperwork must then prepare an “Affirmation of Service” (Form UD-3). This document confirms that your spouse was indeed given copies of the necessary divorce paperwork.
Step 4 – Place Your Case on the Court Calendar
Once your spouse has signed and returned the Affirmation of Defendant, you’re able to immediately place your case on the court calendar. If they did not sign, you must wait at least 40 days after serving them with divorce papers before taking further action.
Once 40 days have passed, you must fill out several additional forms specific to your case which can be found on the New York State Unified Courts website.
Step 5 – Obtain Court Judgment
In an uncontested divorce, once it’s approved, the Judge will sign a Judgment of Divorce, marking the official end of your marriage. The Defendant – your now ex-spouse – must then receive a copy of this signed document.
Depending on where you live, you’ll either be mailed this Judgment or may need to grab it personally from the court.
Finally, after obtaining this crucial piece of paperwork, you must file it with the local County Clerk’s Office.
Additional Steps for a Contested Divorce in New York
In situations where your divorce is contested, meaning disagreements persist between you and your spouse regarding key aspects of the split, you or your attorney will also need to take the following steps:
Meet With Court Official
Once the case is placed on the court calendar, the Judge or court clerk meets with both parties to determine which issues can be resolved amicably and which will likely require trial to settle.
Preliminary Conference
During a preliminary conference, the judge will encourage both parties to resolve as many disputes as possible. If disagreements remain at this stage, the court then sets up a timeline for discovery, which is the formal process of gathering evidence. Additionally, they’ll schedule a trial date. Trials often occur within one year, but more intricate cases may demand an extended timeframe.
Deal With Temporary Orders
The judge may make temporary orders for spousal maintenance, temporary child custody, child visitation, and child support.
Have a Trial
If a case is not resolved, it proceeds to trial where the judge will make final decisions on all contested issues. Some time after the close of the trial, the judge will issue a final judgment as with an uncontested divorce.
Residency Requirements for New York Divorce
To file for divorce in New York, you or your spouse must meet at least one of five residency requirements:
- One spouse has been a New York resident for two continuous years before filing
- The marriage took place in New York, and one of you has resided there for at least the 12 months leading up to the filing
- You lived together as spouses in New York and at least one spouse has lived in New York for the 12 months leading up to the filing, and still currently lives in New York
- The grounds (legal reason) for your divorce occurred within state lines, and either spouse was living in New York consistently for 12 months before the filing
- The grounds for your divorce occurred in New York and both you and your spouse are residents of New York when you file
Approximate Cost to File for Divorce in New York
Filing for divorce in New York brings with it various costs, starting with filing fees of approximately $335. Additional expenses may come into play if you need to hire a process server to deliver the divorce papers to your spouse. Additionally, if motions are filed in your case, there is a cost of $45 per motion. For example, your attorney may need to file a motion for discovery to compel your spouse to present certain financial documents.
Attorney fees can also add substantial cost, but it’s important to understand that you have options when it comes to legal representation. If budget is a concern — as it so often is — you can consider hiring an attorney only for specific stages of your divorce proceedings rather than the entire process. This can reduce overall costs while still providing professional guidance where it is most needed.
Grounds for Divorce in New York
New York State recognizes seven reasons, or grounds, for divorce, with the most common being irretrievable breakdown. Commonly known as “no-fault” divorce, it can only be claimed after the marriage has broken down irretrievably for a minimum of six months. Additionally, all financial issues and child-related matters must be resolved prior to filing.
Other potential grounds that can be used include cruel and inhuman treatment, abandonment, imprisonment, adultery, divorce after a legal separation agreement, and divorce after a judgment of separation.
Division of Property in New York Divorces
When you’re dealing with a divorce in New York, dividing up marital property is governed by the principle of equitable distribution rather than an automatic equal split. “Equitable” means that courts look at what’s fair, taking into account various factors related to each spouse and the specifics of their case.
These considerations might include:
- The length of the marriage
- Each spouse’s income and earning capacity
- The age and health conditions of both parties
- Whether there are children from the marriage
This approach can result in settlements where one party may receive more or less than 50% of property, depending on how these factors play out.
Alimony Considerations in New York
When a marriage is ending in New York, spousal maintenance – also referred to as alimony – is a pivotal issue that is often disputed between parties. These are financial payments that aim to help a lower-earning spouse rebuild economic stability post-divorce.
Courts evaluate several factors to calculate a fair amount for support. For example, they look at the spouses’ lifestyle before the divorce as well as each party’s finances to determine if maintenance is needed. If it is, the courts follow a formula to calculate these payments.
In New York, the duration of spousal maintenance payments usually correlates with the length of the marriage, with longer marriages leading to a longer period of payments. Ultimately, the goal is to find fairness and financial balance for both parties.
Child Custody in New York Divorces
Child custody arrangements are significant components of a divorce or separation involving children. A child custody order legally establishes who holds responsibility for the care and upbringing of the child.
Custody generally encompasses two parts: legal custody, which grants a parent or guardian the authority to make key decisions for their child’s welfare such as education and health matters; and physical custody, which pertains to where and with whom the child will primarily live.
Judges in New York decide these issues based on the best interest of the child standard, focusing on ensuring that all decisions support the optimal welfare and development of the child involved. In instances without a formal court order, both parents equally share legal and physical custody rights.
Tackling divorce in New York can certainly be a stressful ordeal – one filled with not just emotional challenges but complex legal ones as well. Reaching out to an experienced lawyer can be a crucial step towards safeguarding your interests throughout the process.
While securing representation is beneficial, if finances are of concern, you have options to have a lawyer manage only select aspects of your case instead of handling everything from start to finish. Always remember that there’s support available.
