New York Divorce Laws

If you live in New York and are thinking about divorce, familiarizing yourself with New York divorce law is an important first step. And if you’re considering representing yourself, it’s not just important . . . it’s crucial.

By , Retired Judge

If you're facing a divorce in New York, it pays to do your homework. Whether you plan to hire a lawyer or get a do-it-yourself divorce, you're going to have to make some decisions, and you should know what to expect. So the more you can familiarize yourself with New York divorce laws, the further ahead of the game you'll be.

New York Laws on Qualifying for Divorce

New York has two basic requirements that you must meet in order to get a divorce in the state: a legally accepted reason for ending your marriage, and a residency requirement.

Grounds for Divorce in New York

To begin a divorce case in New York, you must have one of the legally acceptable reasons, or "grounds, for ending your marriage. New York has both "fault" and "no-fault" grounds. Fault grounds come into play when you're accusing your spouse of wrongdoing, such as adultery, mental or physical cruelty, or desertion. With no-fault grounds, neither spouse is blaming the other for the collapse of the marriage.

New York law provides three no-fault grounds:

  • The spouses have lived separate and apart under a court-ordered legal separation judgment for at least one year, and they've met the conditions of the judgment.
  • The spouses have lived separate and apart under a written, signed separation agreement for at least a year, and they've met the agreement's conditions.
  • One spouse states under oath that the marriage has "broken down irretrievably" for at least six months.

In New York, a judge may not grant a divorce based on the marriage's breakdown unless all of the issues in the divorce have been resolved, either by the judge or the spouses themselves, in a marital settlement agreement. (N.Y. Dom. Rel. Law § 170 (2022).)

Because your spouse is likely to dispute claims of misconduct when you choose one of the fault-based divorce grounds, you're almost always better off filing for a no-fault divorce if you want to avoid an unnecessary (and costly) legal battle.

Residency Requirement for a New York Divorce

Before you can file for divorce in New York, you must meet at least one of the following criteria:

  • You and your spouse were married in New York or resided there as a married couple, and at least one of you has been a resident of the state for a continuous period of one year immediately before the filing date.
  • The cause (ground) for divorce happened in New York, and you or your spouse has been a resident of the state continuously for a year just before the filing date.
  • The ground for divorce happened in New York, and both you and your spouse are residents of the state when you start the divorce process.
  • Either you or your spouse has continuously been a resident of the state for at least two years just before the divorce begins.

(N.Y. Dom. Rel. Law § 230 (2022).)

How to File for Divorce in New York

The New York Courts website provides an overview of the divorce process, as well as forms you'll need to move forward. If you're the one starting the divorce process (the "plaintiff"), you'll need to complete and file certain documents with the court, including:

  • Summons With Notice, or Summons and Verified Complaint
  • Notice of Automatic Orders
  • Notice Concerning Continuation of Health Care Coverage, and
  • Settlement Agreement, if you have one.

When you've completed the forms and signed them in the presence of a notary, make at least two copies and bring them to the county clerk's office in the county where either you or your spouse lives. (N.Y. C.P.L.R. § 530 (2022).)

You'll need to purchase an index number, which will go on all the documents.

The requirements and procedures for filing for divorce may vary from county to county. Check with the clerk's office of the county where you're filing to determine the local rules. If you're interested, you can also ask about filing your forms electronically, which is available in some counties.

The Cost of Filing for Divorce in New York

When you submit your divorce papers to the court, you have to pay various fees at different times. The total fees (including the initial fee for purchasing an "index number") are at least $335 but are always subject to change.

If you can't afford to pay the filing fees, you can submit a request for a fee waiver. Based on the information you provide about your income, assets, and debts, the court will determine whether you qualify. Information necessary for a waiver may vary by county, so ask your county clerk's office about the local requirements.

Overview of the Divorce Process in New York

After you've filed your initial divorce papers, the process of getting a final divorce in New York depends in large part on whether your case is contested or uncontested, as well as local rules.

Uncontested Divorces in New York

In an uncontested divorce, the spouses have agreed about all the issues involved in ending their marriage, including:

  • how they'll divide their marital property and debts
  • whether one spouse will pay alimony (known as "spousal maintenance" in New York) and if so, how much and for how long, and
  • if they have minor children together, their arrangements for child custody, visitation, and child support.

Many couples attempt to settle any disputes before they file for divorce, often with the help of mediation. That way, once they have a settlement agreement, the rest of the divorce process will be relatively simple, and the couple can request that the court include the agreement in the judgment of divorce.

Also, if couples have a settlement agreement, they may use an online divorce service that will supply the correct forms and basically walk them through the process.

Here are the basic steps for an uncontested divorce in New York:

  • Affidavit of Defendant. As long as your spouse (the "defendant") is agreeing to everything you've requested in the complaint and has returned a signed and notarized Affidavit of Defendant, you can typically give your spouse copies of all of the divorce papers.
  • Filing final divorce papers. Next, you'll need to file the Affidavit of Defendant and a series of other final divorce papers with the court.
  • Finalizing your divorce. Depending on your county, you might not have to appear in court for a final hearing. In that case, a judge will simply review your paperwork and, if everything is in order, will sign the final divorce judgment. Check with the clerk's office to learn about the local rules for any final steps, including filing the judgment, serving it on your spouse, and whether you'll need to schedule a hearing.

Contested Divorces in New York

The court will consider your New York divorce to be contested when you and your spouse have disputes over any issues in your case, such as child custody and visitation, child support, alimony, or property and debt distribution.

Contested cases are much more complex than uncontested ones and involve extra steps in the process, including the following:

  • Serving the complaint. In a contested divorce, you'll need to have someone else serve your spouse with the divorce papers. If your spouse lives in New York, any adult state resident who isn't directly involved in the divorce can hand-deliver the forms. If you haven't been able to serve your spouse personally, or if your spouse is out-of-state, New York law provides alternative methods of service, such as publishing a notice in a local paper. Ask the court clerk for details. (N.Y. C.P.L.R. §§ 306-B, 308, 315 (2022).)
  • Answering the complaint. The defendant has 20 days to respond to the divorce papers after being served with the divorce papers in New York (or 30 days if served out of state). (N.Y. C.P.L.R. § 320(a) (2022).)

There are also additional forms in contested cases, including financial disclosure statements. These documents require you to provide a great deal of data about your income and assets, and it's imperative that you be thorough and honest in completing them. A spouse who fails to disclose all accounts, debts, or assets could face penalties in a divorce case, such as fines and possible jail time.

Even in divorces that start out as contested cases, most couples manage to reach agreement on their issues at some point during the divorce process, usually with the help of their lawyers, a mediator, or both. (In fact, New York now requires "alternative dispute resolution," such as mediation, in contested divorces.)

If spouses don't settle all their issues, they'll have to go to trial to have a judge make the final decision on unresolved matters.

Some disputes are more difficult to resolve than others. Without an agreement, New York law will guide judges in their decisions on these issues:

  • Child support. This is usually the easiest issue to resolve, because New York law provides formulas for calculating child support, which is largely based on the spouses' income and the amount of time a child will spend with each parent.
  • Child custody. Parents often find it more difficult to agree about custody and visitation, in part because these issues can be so emotionally charged. Settlement can be further complicated by any allegations—or documented history—of spousal or child abuse (domestic violence) by either parent. The bottom line is that New York child custody laws require judges to make sure that custody and visitation agreements and orders are in the best interests of the children.
  • Property and debts. New York law requires an "equitable division" of your marital property and debts. That means that the judge will decide what's fair under the circumstances of your case. Unlike what you'd see in a "community property" state like Texas, equitable distribution doesn't necessarily result in a 50-50 split.
  • Alimony. Payment of alimony in New York isn't a sure thing. When a couple can't agree on this issue, a judge may order either spouse to provide support for the other if the judge decides that "justice requires" it. Among other things, the judge will take into consideration the duration of the marriage, the ability of each spouse to be self-supporting, and each spouse's circumstances (such as health problems). (N.Y. Dom. Rel. Law § 236, Part A (1) (2022).)

Contested divorces tend to be very expensive. (Think legal fees.) The cost of divorce climbs as cases drag on without a settlement—and the bills are highest for couples who need a trial to resolve their issues.

How Long Does a Divorce Take in New York?

The amount of time it will take to complete your case will largely depend on the type of divorce. Obviously, an uncontested divorce will take less time than a contested one, because the spouses have resolved all their issues. So there's nothing left to fight about.

  • Uncontested divorces will likely take two to three months to complete, depending on the number of judges handling divorces in your county, and each judge's caseload.
  • Default divorces could take somewhat longer than an uncontested divorce. If your spouse didn't respond to the divorce complaint, you must wait at least 40 days (from the date your spouse was served) to ask the court to schedule your case for a hearing on a default divorce.
  • Contested divorces typically take considerably longer—from six months to a year or more—depending on the complexity of the case, how long it takes a couple to try to work out a settlement, and whether they have to go to trial.

Should You Represent Yourself in a New York Divorce?

You certainly have the right to represent yourself in your divorce. But whether you should do that is a different matter. Self-representation (known as appearing "pro se") is most practical when you have an uncontested case, or you have no minor or dependent children and very few assets. But in situations where you have custody disputes or a significant amount of property, you may be better off retaining an attorney. Divorce laws can be quite complicated. A qualified divorce lawyer will know the intricacies of the law, as well as the ins-and-outs of the court system.

Remember, you're likely going to have to live with the results of your case well after the divorce is over. If, down the road, you realize you made a mistake, there's no guarantee you'll be able to correct it. So it pays to get it right the first time.

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