To get a no-fault divorce in New York, you must satisfy the requirements of New York’s Domestic Relations Law (DRL). New York was the last state in the United States to implement a no fault basis for divorce. Today, the vast majority of divorce cases in New York are filed on the basis of no fault (also referred to as “irretrievable breakdown”).
DRL 170(7) – New York’s No Fault Divorce Statute:
Section 170(7) of the DRL sets forth New York State’s statutory basis for no fault divorce. Specifically, the DRL provides that a New York court may enter a judgment of divorce when the marriage “has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath.” In addition, the statute requires that prior to the entry of a divorce judgment, all “economic issues” must be resolved, either by agreement between you and your spouse or a determination by the court. In practical terms, this means that you cannot obtain a final judgment of divorce until there has been a resolution of issues relating to marital property (equitable distribution), spousal support, counsel fees, and (if applicable) issues relating to un-emancipated children of the marriage. A global resolution of financial issues can occur in a variety of different ways, including:
- Entering into a separation agreement prior to the filing of divorce proceedings;
- Signing a Stipulation of Settlement after a divorce case has been commenced; or
- Proceeding to a trial of financial issues.
You may only file for divorce in New York if you meet certain residency requirements. You satisfy the residency requirement if you have lived in New York for a period of two years immediately preceding the filing of your divorce case. However, if you have not lived in New York for two years, do not despair: there are other ways to satisfy New York’s residency requirements for divorce.
A list of all the possible ways to satisfy New York’s statutory residence requirements for divorce can be found at the New York State Unified Court System’s website.
Filing Your No Fault Divorce Pleadings:
Assuming that you meet the residency prerequisite, you begin your divorce case by filing either a summons with notice or summons and verified complaint with the Supreme Court in the county where either you or your spouse reside. The choice of the appropriate county is called “venue”. There is one exception to the foregoing rule: regardless of where you reside, you are permitted to file a divorce case in New York County (Manhattan), which is considered an “open” county and is available for all New York residents. However, if you neither you nor your spouse resides in Manhattan, you run the risk that your spouse will be able to subsequently request a change in venue (i.e. that the case be transferred to a county where he or she lives).
Once you draft your initial pleading (i.e., the summons and/or summons and complaint), you should make at least three copies of the divorce papers. The original is filed with the Supreme Court clerk in the county where you are commencing your proceeding. When you file your summons, you will need to pay a filing fee that is commonly referred to as the “Index Number Fee”. Once you file your pleading and pay the fee, the court will assign an index number (also known as a docket number) to your case.
Serving the Divorce Papers:
After you have filed your summons, you need to arrange for service of process of the summons (or, if you have also filed a complaint, the summons and complaint) on your spouse. If your case is uncontested, your spouse may be willing to sign an affidavit of defendant in which he or she acknowledges receiving the summons. Otherwise, you need to arrange for personal delivery of the papers by a New York resident over the age of 18 years. The papers may not be delivered (served) on a Sunday.
The person who serves the papers will need to sign and acknowledge an Affidavit of Service, in which he or sets forth their name; the location at which the papers were served; the date and time of service; and a physical description of your spouse. If the person who serves the papers is not personally familiar with your spouse, they should use a photograph to ensure that the correct person is served. The photograph should then be attached to the affidavit of service form.
Marital Settlement Agreement:
Once service of process has been completed, many couples face the reality that a contested divorce proceeding is overwhelmingly stressful and expensive. For this reason, they try to negotiate an amicable resolution of ancillary financial issues, such as equitable distribution, maintenance, child support, and custody.
If they have not already done so, many matrimonial litigants retain a New York divorce lawyer to help them navigate the complexities of New York matrimonial law. If they do not have the resources to retain a divorce attorney, middle-income litigants sometimes turn to document preparation sites, which provide step-by-step instructions for completing matrimonial agreements and uncontested divorce forms.
If you are able to resolve your differences by signing a marital settlement agreement, your case will then proceed “on the papers”. This means that neither you nor your spouse will be required to testify in court. Instead, your divorce judgment will be entered by a New York Supreme Court Justice based on documents that you submit, which include affidavits, a proposed judgment, and related papers.
Because New York divorce law and procedure is unusually complex, most New Yorkers facing divorce are best served by at least having a consultation with an experienced matrimonial attorney. At a minimum, an experienced NY divorce lawyer will help you identify which assets are marital – and thus subject to distribution in divorce. A divorce attorney will also be able to provide guidance on how to deal with issues such as dividing retirement accounts. Qualified retirement accounts (such as pensions, 401k’s and profit sharing plans) can only be divided with specialized forms known as qualified domestic relations orders (QDRO’s). Finally, a domestic relations attorney will also be able to help you understand whether you or your spouse may have a valid claim for maintenance (also known as alimony).
There are many different avenues for obtaining information about the procedures, requirements, and legal guidelines applicable to NY divorces. Whether you rely on a NY matrimonial lawyer, divorce form service, or the court’s website – or all three – it is important for you to gather as much information as possible about divorce.