Obtaining a divorce is an emotional and stressful process. Even if you believe that your divorce will be “uncontested,” meaning that your spouse will agree to the divorce, there are many issues beyond simply ending the marriage that you have to think about. Consulting with or retaining an attorney is always a smart thing to do. An attorney can make sure that your legal rights are protected and can assist you with any issues that may arise throughout the course of your divorce. The information provided here is only appropriate for you if your divorce is uncontested. If your spouse won't agree to the divorce, you will most likely need a lawyer.
If you and your spouse agree about getting a divorce, but need some help working out financial or child custody issues, you may want to consider mediation or using collaborative lawyers. Sometimes these processes can make divorce quicker, less stressful, and keep you out of court as compared to hiring conventional divorce lawyers. You can find information about mediation and collaborative law on the New York Courts website.
Obtaining a divorce in New York is very complicated and involves filling out and filing many court forms, even if your divorce is uncontested. All of the forms you will need to obtain an uncontested divorce are available on the New York Courts website in the Uncontested Divorce Packet, which also includes instructions.
The first form you will you have to fill out is the “Summons With Notice (Form UD-1)” or the “Summons (Form UD-1a)” and “Verified Complaint (Form UD-2).” The Summons is the form that begins your divorce action in Supreme Court and names you as “plaintiff” and your spouse as “defendant.”
The choice between using a Summons With Notice and a Summons and Verified Complaint is just a matter of detail. Both forms will require you to provide extensive information, including the “grounds” or reason you’re seeking a divorce as well as other “relief” you’re seeking, like child custody, child support, division of property, and maintenance (also known as alimony). However, if you file the Summons and Verified Complaint, you have to include more information about you, your spouse, and your children.
Once you choose and fill out the forms, you will need to make two additional copies. Next, bring your completed forms to the county clerk’s office to file them. You can file in the county where you or your spouse lives.
The clerk’s office will assign your case an “Index Number” which you or the clerk will need to put on your forms, along with the filing date.
You have to pay $210 to the clerk for the Index Number. However, if you can’t pay the fee, tell the Clerk you want to fill out the “Poor Person’s Waiver” forms. If you qualify, you won’t have to pay the fees.
You have to “serve,” or give, your spouse a copy of the summons and complaint (if you filed one) within 120 days of the date you filed. If your spouse lives in New York, anyone other than you who is a resident of New York State and is over 18 years old can serve your spouse. Service must be “personal,” which means personally handing the papers to your spouse. Your spouse can be served any day of the week except for Sundays. If your spouse lives in another state, you have to follow the rules for service in that state.
If you and your spouse have children together, then you must also serve a copy of the Child Support Standards Chart with the Summons.
You should also include the “Affidavit of Defendant (Form UD-7)” and instructions on how to fill it out. This is a form for your spouse to fill out, sign, and send back to you within 40 days if your spouse agrees to the divorce.
If your spouse agrees to the divorce, your spouse will sign and send back the affidavit of defendant form within 40 days. If your spouse won’t complete and return the affidavit, then whoever served your spouse with the summons needs to prepare an “Affidavit of Service (Form UD-3),” which proves that your spouse received copies of the paperwork.
If your spouse does not return the affidavit and you were married in a religious ceremony, then you must fill out the “Sworn Statement of Removal of Barriers to Remarriage (Form UD-4) and have someone other than you, over the age of 18, send a copy to your spouse by mail.
If your spouse files a "Notice of Appearance" and disagrees with any part of your divorce papers, then your divorce is no longer uncontested and you should consult an attorney.
If your spouse signed the affidavit of defendant, then you can place your case on the court calendar at anytime. If your spouse did not sign the form, then you have to wait 40 days after serving him with the papers.
The New York Courts website has specific instructions for filling out each of the following forms, all of which are required to place your case on the court calendar:
If your spouse did not sign and return the affidavit of defendant, then you must also file:
If you and your spouse have children together, then you also have to file the forms related to child support (Forms UD-8, UD-8a, and UD-8b).
If you are filing in a court other than in one of the five New York City Boroughs, then you must also file the “Request for Judicial Intervention (Form UD-13).”
Bring all of your completed forms to the county clerk’s office to file them. Unless you were granted a waiver based on income, you may have to pay certain filing fees. The clerk will submit all of your papers to the judge. If the judge approves your paperwork, he or she will issue a judgment of divorce.
In order to avoid a trial and have a truly uncontested divorce, you and your spouse should have agreed on a settlement to all issues, including division of property, maintenance (also known as alimony), and child custody and support. Any or all of these issues can be dealt with through mediation or sitting down and coming to an agreement that both you and your spouse consent to.
All agreements are subject to the judge’s review. Therefore, even though neither you nor your spouse has to file a financial disclosure statement with the court to obtain a divorce, the judge will still make sure that child support is adequate and division of property is equitable before issuing a judgment. The court provides a “Statement of Net Worth” to assist you and your spouse in determining financial issues. You can each fill one out and exchange them in order to come to a fully-informed agreement that the judge approve.
If you and your spouse can’t agree on custody and child support, you can file a petition in Family Court. The Family Court can issue orders pertaining to child custody and support that can then be incorporated, or included, in your final judgment of divorce.
Even if there are prior court orders or a prior agreement between you and your spouse, the court may still require a hearing on maintenance, custody, visitation, or distribution of property. If a hearing is required, the court will notify you and your spouse to appear.
To learn more about getting divorced in New York, as well as related legal issues like child custody and property division, see New York Divorce and Family Laws.
For more information, including the Uncontested Divorce Packet, divorce forms, and instructions, see the New York Courts website.