What are the general requirements to divorce in New York?
Spouses seeking a divorce in New York must meet some basic requirements. The first is a residency requirement. To satisfy the residency requirement, there are four options:
- you or your spouse have been living in New York for a continuous period of at least two years before beginning the divorce process
- you and your spouse are both residents of New York as of the day you begin the divorce process, and the "grounds" (the legal reasons) for the divorce occurred in New York
- you or your spouse have been living in New York for a continuous period of one year before starting the divorce process, and the grounds occurred in New York, or
- your marriage was performed in New York or you lived in New York as a married couple, and you or your spouse lived in New York for one continuous year before starting the divorce process.
What are the grounds for divorce in New York?
Divorce completely ends the marital relationship between spouses, so that they are free to marry again if they wish. New York has seven "grounds" (reasons) for divorce, most of which are fault-based. "Fault-based" divorces are those in which a spouse has committed "marital misconduct" (bad or wrongful acts) that hurt or damage an "innocent" or "injured" spouse.
New York also has a no-fault statute. This means that divorce is available regardless of whether there was marital misconduct. All that has to be shown is that one spouse believes the marriage has broken down to the point that the marital relationship can't be mended.
The grounds for divorce in New York are:
- cruel and inhuman treatment
- the couple has been living separate and apart (meaning, they haven't been living like a married couple) pursuant to a separation judgment or decree (a formal legal order for separation)
- the couple has been living separate and apart pursuant to a separation agreement (this would be a voluntary agreement, not a court order), and
- "irretrievable breakdown of the relationship" for at least six months.
"Irretrievable breakdown of the relationship" is the no-fault provision. If the plaintiff (the spouse who's seeking the divorce) swears under oath that the marriage is beyond repair and has been for at least six months, and if the plaintiff and defendant agree on all the economic and custodial issues (or if those issues will be incorporated into a court order because they were tried before a judge), then the divorce will be granted.
What papers do I need to start the divorce?
The "plaintiff" (spouse asking for the divorce) has to prepare a Summons with Notice or the Summons and Verified Complaint (legal paperwork requesting a divorce). These papers must be filed with the county clerk in the county where the divorce court is located. The county clerk will charge a filing fee unless the plaintiff is indigent (meets certain low-income guidelines). If the plaintiff knows the "defendant" (responding spouse) will agree to the divorce, the plaintiff should also provide the defendant with an Affidavit of the Defendant. If that affidavit is returned and completed, the case can be placed on the uncontested calendar (see below).
Regardless of whether the plaintiff uses a Summons with Notice or a Summons and Verified Complaint, the plaintiff must arrange for personal service (delivery) of the documents on the defendant within 120 days of filing divorce papers. "Personal service" means that someone must personally hand the papers to the defendant.
The "server" (person who delivers the paperwork on the defendant) has to be a resident of New York, over the age of 18, and can't be a party to the action (meaning, the plaintiff spouse can't hand the documents to the defendant). Regardless of where the defendant lives, the plaintiff still has to arrange personal service, although under certain circumstances, a court may allow service by publication (posting in an approved newspaper).
What does "contested" and "uncontested" mean, and why is it important?
"Contested" means that there are critical issues in your divorce that you and your spouse haven't been able to resolve, either with or without the help of lawyers and mediators. You haven't been able to agree on key issues like child custody, alimony, or the division of property, or your spouse might not want to be divorced, or disagrees with the grounds you're citing. The bottom line is that because you can't agree, you'll have to go to trial and let a judge decide for you.
"Uncontested" means that you agree to all the important terms of your divorce. You've decided where your children will live and what the visitation schedule will be, you've agreed to the terms of alimony and child support, and you know how you want to divide your property. Because you've been able to do all the heavy lifting, there's not very much left for a judge to do but review and approve your agreement if it meets legal standards.
The practical difference between contested and uncontested cases is the amount of time they take. Uncontested cases are expedited (placed on a faster track) because judges can handle more of them in less time. It's a matter of reviewing and approving the papers that the parties have prepared.
Contested cases, on the other hand, take longer. You'll sometimes have to wait for open slots on a judge's calendar so that you can argue motions (requests for the court's help) or go to trial. Your case will be assigned to a judge, and within 45 days of that you'll have to attend a preliminary conference and after that, a compliance conference. You'll have six months to complete the paperwork, schedule a trial date, and finish "discovery" (the legal process that allows the parties to demand information from each other). Once the trial is over, you have to wait for a final judgment (also known as a final decree or order) before you're divorced.
Can I request a jury trial?
New York divorce plaintiffs are entitled to a jury trial, but the circumstances are very narrow. The only issue that a jury can decide is the grounds for the divorce.
For example, if the plaintiff asks for a divorce because the defendant's treatment of the plaintiff was cruel and inhuman, the defendant has a right to demand a jury trial to fight these claims. However, the jury will not have the ability to decide financial issues or issues relating to children, like custody and visitation.