Divorce Summons and Service In New York
This article provides an overview of the summons & divorce process in New York.
The divorce process begins when one spouse brings a divorce lawsuit against the other spouse. The spouse who begins the process and files an action for divorce (legal paperwork asking for a divorce) is called the “plaintiff.” The other spouse (the one that needs to respond to the lawsuit for divorce) is called the “defendant.”
Is There a Residency Requirement to File for Divorce in New York?
Before a spouse can file for divorce in the state of New York, residency requirements must be met. “Residency” means that you have lived (or have been present) in New York for a certain period of time. Residency requirements for divorce may be met by one of the following:
- you and your spouse were married in New York, and one of you has lived in New York for a continuous period of one year
- you were married and living as husband and wife in New York for a continuous period of one year
- the circumstances that led to the divorce occurred in New York (e.g., adultery), and one of you has been living in New York for a continuous period of one year
- the circumstances that led to the divorce occurred in New York, and you both live in New York, or
- if you were not married in New York and have never lived as husband and wife in New York, then one of you must have been living there for a continuous period of two years.
How Do You File the Legal Paperwork for a Divorce in New York?
In New York, the Supreme Court handles divorce cases. The divorce paperwork should be filed in the Supreme Court in the county where the spouses live.
To begin an action for divorce, the plaintiff must file a “Summons" or a "Summons with a Complaint:” legal documents, which notify the defendant an action for divorce has been initiated. A “Complaint” is a legal document that details the specific reason(s) for the divorce.
If a summons is served without a complaint, the defendant has 20 days to serve a “Notice of Appearance” on the plaintiff, which notifies the court of the defendant’s participation in the court process. Once the defendant appears in court, the plaintiff has 20 days to serve the defendant with the complaint.
If the summons is filed with the complaint, the defendant has 20 days to answer the complaint.
You can access a sample copy all of the foregoing divorce forms on the New York Court’s website by clicking here
What are the Service Requirements?
The plaintiff must make sure the defendant is notified of the divorce action. So, a divorce defendant must be “served” with the summons, which means the divorce paperwork needs to be handed directly to the defendant. This method of service is called “personal service.”
The person serving the papers on the defendant cannot be one of the parties to the case, which means one spouse cannot serve the other. The server can be a friend, relative, or a process server hired by the plaintiff, and must be at least 18 years old.
The plaintiff can “serve” the defendant in any of the following ways:
- Personal Delivery: the defendant is handed the court papers.
- Substituted Service: personal service on someone who lives/works with defendant and is mature enough to give him/her the papers and first-class mailing to defendant’s last known address/place of business (envelope must say “personal and confidential” and not mention the lawsuit.)
- Service by Publication: If the defendant can’t be found, the court will allow an official notification of the divorce proceeding to be published in a newspaper.
- Alternate service: Any other method of service the court decides is appropriate.
What are the Grounds for Divorce in New York?
In New York, spouses can pursue a no-fault or fault based divorce.
The only ground that needs to be stated in order to pursue a “no-fault” divorce is that a marriage has been “irretrievably broken” for a period of at least six months. “Irretrievably broken” means that the relationship between the spouses has broken down and is beyond repair. Under a “no- fault” divorce, you don’t have to tell the court that your spouse did something wrong in order to get a divorce.
Divorce based on Separation
In addition to the classic no-fault ground of “irretrievable breakdown,” in New York, divorcing spouses can also base their divorces on the ground of separation. Before a court will grant a divorce based on separation, you must show that you and your spouse lived separate and apart for one or more years and have signed a written agreement, which lists the terms and conditions of the separation.
The plaintiff can file the separation agreement along with the summons and complaint for divorce with the court. If all the terms and conditions are met, the Judge may then approve the agreement, which will become a part of your judgment for divorce.
In contrast, a “fault” divorce is where the plaintiff must accuse the defendant of some wrongdoing, which led to the breakdown of the marriage. The fault grounds in New York are:
- cruel and inhuman treatment, including physical, mental, or emotional abuse
- abandonment for a continuous period of at least one year
- constructive abandonment, which occurs when one spouse refuses to have sexual interactions for at least one year
- imprisonment for three consecutive years, and
How Much Does it Cost to Get a Divorce in New York?
When you bring a divorce action, the court will charge you “filing fees,” which are simply fees to file your legal paperwork. For example, when a plaintiff files a summons (with or a without a complaint), the court will charge $210 to file the paperwork. The court clerk will issue an “index number,” which is used to identify the case and should be written on all subsequent, divorce-related papers filed with the court.
The court will also charge fees for additional legal motions or paperwork. You can access a list of filing fees on the New York Court’s website by clicking here
In addition to court costs, if you hire an attorney, he or she will charge you an hourly fee which can range from $100 to $450 in the New York area. This fee usually depends on the attorney’s level of experience.
It is impossible to predict legal fees for a divorce. If your case is uncontested and you and your spouse agree on most or all of the issues, you can probably keep your attorney’s fees to a minimum. If your case is rather complex or highly contested however, legal fees will rise quickly.
See New York Divorce & Family Laws for more information on the divorce process and related issues.
For a complete list of the fault grounds in New York, see DRL § 170
For the full text of the law governing residency requirements in New York, click here
For a complete list of the various methods of personal service, see CPLR § 308
For general divorce information and FAQs, click here
For an uncontested divorce booklet, click here