Like most legal processes, filing for a divorce can be intimidating for most people. Everyone has heard stories about how filing for a divorce in New York can be a lengthy process. Though it may be tempting to go at it by yourself, it is important to consider getting the help of a skilled Manhattan divorce lawyer. An attorney can prepare and verify your documents to prevent costly mistakes. An attorney can also help save you the grief it would take to negotiate and meet with your spouse in the event of a contentious divorce, and provide insight on how to handle divorce when children are involved.
At the Law Office of Richard Roman Shum, we provide quality and compassionate legal counsel to individuals seeking to file a divorce in New York. Contact us today at (646) 259-3416 to schedule a complimentary consultation with one of our experienced New York divorce attorneys.
“In both cases attorney Shum was great to work with. Navigating both of these situations was, at times, confusing. Attorney Shum made the details of both matters easy for me to comprehend.”
Understanding the Divorce Process in New York
In New York, either spouse can file for divorce. The state recognizes both fault-based and no-fault divorces. New York divorce laws also include provisions for equitable distribution of marital property, which means the court divides marital property in a way that is fair but not necessarily equal.
Types of Divorce in New York
Divorce proceedings can be categorized into two primary types: uncontested and contested. Each type represents a different pathway to the dissolution of a marriage, carrying its own set of characteristics, requirements, and potential challenges.
Uncontested Divorce
An uncontested divorce is when both parties agree on all aspects of the divorce, including property division, child custody, and spousal support. This is typically a smoother and quicker process as there are no disputes for the court to resolve. Parties involved in an uncontested divorce often work with their respective attorneys to draft a settlement agreement, which is then submitted to the court for approval. Often, no court appearances may be required.
Contested Divorce
A contested divorce, on the other hand, is when the parties cannot agree on one or more issues, and the court must decide. These divorces are often more challenging and time-consuming. They may require a trial where both parties present evidence and arguments for their desired outcomes. It’s essential to have a knowledgeable Manhattan divorce lawyer to represent your interests and guide you through the process.
Residency Requirements in New York
Before filing for divorce in New York, it’s important to understand the state’s residency requirements. At least one of the following points has to be satisfied to meet the requirement:
- At least one spouse must have been a New York resident for a continuous period of two years before filing.
- If the couple was married in New York, and at least one spouse has lived in the state for a continuous year, they can file for divorce.
- If both spouses are residents of New York at the time of filing, and the grounds for the divorce occurred in the state, they can file without regard to the length of residency.
These residency requirements ensure that New York courts have jurisdiction over your case and can make legally binding decisions regarding your divorce.
What are the Steps in the Divorce Process in New York?
The divorce process in New York follows a structured legal path designed to address the dissolution of marriage and related issues such as property division, child custody, support, and spousal maintenance. Whether the divorce is contested or uncontested significantly affects the complexity and length of the proceedings. Here are the key steps:
STEP 1: Filing
The divorce process officially begins when you file a summons and complaint with the court. The summons informs your spouse that you are initiating a divorce action, while the complaint outlines the grounds for your divorce and your requests regarding property division, spousal support, child custody, and child support.
When preparing these documents, it’s critical to be thorough and accurate. Any errors or omissions can potentially delay the divorce process or impact the final divorce judgment. Filing for divorce also designates the parties as a Plaintiff and a Defendant. The Plaintiff is the spouse who files for the divorce, and their husband or wife is designated as the Defendant.
If you and your spouse have agreed to the terms of your divorce and have an existing Settlement Agreement, you may also file it at the same time as filing for the divorce to be initiated. As there are grounds allowing for divorce even if the Defendant is not present, a Plaintiff can petition for a divorce in absentia in New York.
- If the Defendant fails to respond to the court summons, a divorce by default may be obtained
- Divorce by publication may also be an available option if the Defendant is unreachable. Serving a divorce by publication is considered an alternative service.
The Plaintiff will need to pay a fee of $210 to have an index number assigned to the case. In the case that the Plaintiff does not have the financial capability to pay for the fee, it is possible to ask for the court fees to be waived.
STEP 2: Serving the Defendant
Informing the Defendant that the Plaintiff has filed for a divorce is an important step in the divorce process. This is to ensure that the Defendant’s rights are also protected. A Summons With Notice (or a Summons and Verified Complaint, depending on the grounds for divorce) needs to be delivered to the Defendant.
A copy of the following documents must be served to the Defendant along with the summons, with the appropriate index number indicated on each document:
- Notice of Automatic Order
- Notice Concerning Continuation of Health Care Coverage
If the Defendant will not contest the grounds of the divorce (including aspects like child custody, child support, etc.) and can return the “Affidavit of Defendant” signed and notarized, the Plaintiff can directly provide the documents to the Defendant. However, if you are unsure whether the Defendant will contest the divorce or will return the affidavit, the papers must be “served” to the Defendant.
Service
New York law requires that the Defendant in a divorce receive the Summons with Notice or Summons and Verified Complaint personally, barring specific exemptions.
- A Plaintiff in a divorce action cannot serve the papers themselves, but must have another legal adult (18 years and above) deliver the papers to the Defendant.
- The papers must be served 120 days from the date when the papers were filed with the County Clerk
- If the Defendant is currently residing in New York, the server for the divorce must be a New York resident. If the Defendant is being served out of New York jurisdiction, the server must be a person who can serve the divorce papers according to the law of that state.
The server must fill out an Affidavit of Service and return the document to the Plaintiff as proof that the Defendant was served in accordance with the law.
As mentioned, there are cases wherein service might be done unconventionally.
- If the Plaintiff cannot locate their spouse, it is possible to request permission from the court to publish a notice in the newspaper or at the courthouse indicating the divorce.
- In March 2015, New York County declared a landmark decision allowing a Plaintiff who had no other viable alternatives to service to serve the divorce papers through Facebook (Baidoo v Blood-Dzraku: 2015 NY Slip Op 25096)
It is important to seek the help of an experienced New York family law and divorce attorney to be able to understand the available options for you if you would like an alternative way to serve your divorce papers. Contact the Law Office of Richard Roman Shum today at (646) 259-3416 for a free consultation. Our skilled New York divorce attorneys may be able to help you explore your options with regard to service and advise you on other aspects of your divorce.
“Attorney Richard Shum assisted my family and I with a very difficult landlord. At a time of a lot of concern and uncertainty, Mr. Shum was there for us every inch of the way, his confidence and vast knowledge of the law, together with his passion for it and for helping people, provided us the serenity to go on about our life, while he took care of they daunting matter. At the end we reached an agreement only Atterney Shum could achieve. Since I recommended his service to any friends that is in need of help with legal matters, from Landlord/Tenant to family court, and in every case I receive a thank you call from said friends, following the successful outcome he provided. So, as I say to my friends, if you need an Attorney that will fight for you, and not stress you out, call this guy. you will thank me.”
STEP 3: Defendant’s Response
If you’re the spouse who has been served with a divorce summons and complaint, your first task is to respond. In New York, you typically have 20 days to respond if you were served personally and 30 days if the papers were served in any other manner.
Your response, or answer, should address each of the statements in the complaint. You can agree or disagree with the statements, and you also have the opportunity to make your own requests regarding property division, alimony, child custody, and child support.
Failing to respond in a timely manner can result in a default judgment, where the court grants the requests of the filing spouse. Therefore, it’s crucial to respond promptly and accurately, ideally with the assistance of a Manhattan divorce lawyer.
Should the Defendant sign the Affidavit of Defendant or not respond after service (default), the process for uncontested divorce proceeds through completing the rest of the papers. The divorce papers will need to be filed either at the County Clerk’s Office or the Supreme Court Clerk’s Office
If the Affidavit of Defendant was signed and notarized, the rest of the papers may be filed with the County Clerk as soon as they are received by the Plaintiff, subject to a $125 filing fee.
STEP 4: Settlement Negotiations or Trial Preparation
Settlement negotiation or trial preparation is one of the most pivotal stages in a New York divorce. Whether a divorce is ultimately resolved through a mutual agreement or decided in court, this phase lays the groundwork for final decisions about property, support, and parenting arrangements. The path a case takes depends on the level of cooperation between the spouses and the complexity of the issues involved.
Uncontested Divorce: Settlement Negotiations
In an uncontested divorce, both parties agree on all major issues. These usually include:
- Division of marital property and debts
- Child custody and visitation schedules
- Child support and spousal maintenance
- Health insurance coverage and tax matters
The parties, often with help from attorneys or mediators, may draft and sign a Settlement Agreement (also called a Stipulation of Settlement). This contract outlines the terms agreed upon and becomes part of the final Judgment of Divorce. If the agreement is properly drafted and satisfies New York’s legal requirements, the court will generally approve it without the need for a trial or court appearance.
In these cases, paperwork—including the settlement agreement, affidavits, child support worksheets (if applicable), and the proposed judgment—is submitted to the court for review. The judge confirms that the agreement is fair and that both parties entered into it voluntarily.
Contested Divorce: Trial Preparation
If the parties cannot agree on some or all issues, the divorce becomes contested. At this point, trial preparation begins. Key elements of this stage include:
- Discovery: Both parties exchange financial and personal information. This may include:
- Statements of Net Worth
- Tax returns
- Bank records and retirement account statements
- Interrogatories (written questions)
- Depositions (oral questioning under oath)
- Temporary Orders: Either party may ask the court for temporary relief before the final decision. This can involve temporary child custody, temporary maintenance (alimony), or exclusive use of the marital home.
- Preliminary Conferences: These court-mandated meetings help streamline the case. The judge may set deadlines for discovery and encourage settlement discussions.
- Motions: If there are urgent or disputed matters, attorneys may file motions for the judge to decide before trial, such as requests for temporary support or to compel discovery.
- Expert Evaluations: If child custody is in dispute, the court may appoint a forensic psychologist to evaluate the parents and children. Financial experts or appraisers may also be used for complex asset division.
- Settlement Efforts Continue: Even during trial preparation, judges often urge parties to settle to avoid lengthy litigation. Mediation or court conferences may help narrow disagreements.
If no agreement is reached by the trial date, the case proceeds to trial, where the judge hears evidence and testimony before issuing final rulings on all disputed matters.
STEP 5: Court Appearances & Trial (if necessary)
Court appearances and trial become necessary in a New York divorce when spouses cannot resolve all issues through negotiation or mediation. These stages allow the court to supervise the process, manage the case’s progress, and ultimately make binding decisions on contested matters. The level of court involvement depends on how much the parties agree on and how cooperative they are.
Court Appearances
Once the divorce is filed and the defendant has responded, the court will typically schedule an initial Preliminary Conference. This conference sets the tone and timeline for the case. During this appearance:
- The judge identifies disputed issues (e.g., custody, property division, support).
- Deadlines for discovery, financial disclosures, and expert reports are set.
- The court may encourage settlement and suggest mediation if appropriate.
If disagreements remain, the case continues through the litigation process. Additional court appearances may include:
- Compliance Conferences: These ensure both sides are meeting court-ordered deadlines and exchanging necessary documents.
- Motion Hearings: When one party asks the judge to resolve an interim issue, such as temporary custody or spousal support, the court may schedule a hearing to consider arguments and issue a ruling.
- Settlement Conferences: These are often scheduled shortly before trial to give parties one last opportunity to resolve disputes outside the courtroom.
Each appearance plays a role in clarifying legal and factual issues, preparing the case for trial, and possibly avoiding trial altogether.
Trial (If Necessary)
If the case still cannot be settled, it proceeds to trial before a judge (not a jury). Divorce trials in New York are formal legal proceedings where both sides present their arguments and evidence. Key features include:
- Opening Statements: Attorneys summarize their positions and outline what they intend to prove.
- Presentation of Evidence: This can include financial documents, appraisals, emails, photographs, and other records.
- Witness Testimony: Each spouse may testify, along with experts such as forensic accountants or child custody evaluators. Witnesses can be cross-examined by the opposing side.
- Closing Arguments: Each party sums up their position, interpreting the evidence in a way that supports their desired outcome.
The judge considers the facts and the law to decide unresolved matters such as:
- Equitable distribution of marital property and debts
- Custody and visitation arrangements
- Child support and maintenance (alimony)
- Payment of legal fees
After hearing the evidence and reviewing the documents, the judge will issue a Decision and Order, which becomes part of the final Judgment of Divorce. This order is binding and must be followed unless successfully appealed or later modified by the court.
Although a trial is sometimes necessary, it is time-consuming, expensive, and emotionally taxing. For this reason, courts and attorneys often emphasize settlement whenever possible. But when trial is the only path forward, the court provides a structured, impartial forum to resolve contested divorce issues.
STEP 6: Getting and Filing the Judgment of Divorce
The Judgment of Divorce marks the official end of a marriage in New York. It is a court-issued document that includes all the terms governing the dissolution of the marital relationship. Once signed by the judge and entered with the County Clerk’s office, it becomes a legally binding order that both parties must follow.
Judgment of Divorce
The Judgment of Divorce is typically prepared by the plaintiff’s attorney or by the parties themselves in uncontested cases. It incorporates:
- The grounds for divorce (such as irretrievable breakdown of the marriage)
- Terms of the settlement agreement, if applicable
- Court decisions on contested issues (if the case went to trial), including:
- Property division: Specifies how marital assets and debts are allocated
- Child custody and visitation: Defines legal and physical custody arrangements, parenting schedules, and decision-making authority
- Child support: Includes the amount, frequency, and duration of payments
- Spousal maintenance: Sets any obligation for alimony, including amount and length
- Health insurance and tax considerations: Addresses continued coverage or division of tax benefits
The judge reviews all documentation, including financial disclosures and any required child support worksheets, before signing the judgment. If the agreement appears fair and meets statutory requirements, the court will approve it even without a hearing in an uncontested case.
Filing and Entry of Judgment
Once the judge signs the Judgment of Divorce, the next step is filing and entry:
- Filing with the County Clerk: The signed judgment, along with the divorce packet (including the Settlement Agreement, if any, and required affidavits), must be submitted to the County Clerk in the Supreme Court where the case was filed.
- Entry of Judgment: After the clerk processes the paperwork, the judgment is officially “entered.” This means it is logged and recorded as a public document, completing the divorce process.
- Certified Copies: Either party may request certified copies of the entered Judgment of Divorce from the clerk’s office. These copies are necessary for tasks like:
- Changing a name
- Updating marital status with government agencies
- Modifying support orders
- Enforcing property division
Once entered, the Judgment of Divorce is final. However, either party can later file for modification of certain terms (like support or custody) if circumstances significantly change. Appeals are also possible, but must be based on legal error or procedural irregularities during the divorce process.
The entry of the judgment is the conclusive legal step that finalizes the divorce and formally dissolves the marriage under New York law.
Contested Divorce
The process for filing a contested divorce is roughly the same as an uncontested divorce. The shift in the process will branch out the moment the Defendant indicates that they do not agree with the terms of the divorce after being served the papers.
Once the Defendant files and serves the Plaintiff with their Answer, a Request for Judicial Intervention (RJI) must be filed within 45 days from the service of the Summons with Notice or Summons and Complaint. If a Notice of No Necessity is filed by both parties, the Request for Judicial Intervention must be filed within 120 days. Filing the RJI costs $95.
A preliminary conference will be held within 45 days of filing the RJI, which will initiate the process of the exchange of papers and information between the parties. One of the major documents to be exchanged and filed with the court is the spouses’ individual Net Worth Statements. A compliance conference may also be ordered by the court if necessary.
After some additional conferences and meetings where the attendance of both parties may be required, Discovery must be completed with the Note of Issue being filed within 6 months from the preliminary conference. Discovery is the process by which both parties collect evidence on the grounds of the case, either from the opposing party or third-party sources. Discovery may be necessary in cases where there may be conditions like domestic abuse or adultery that require the establishment of supporting evidence. Filing the Note of Issue indicates that both parties are ready to initiate the trial.
In addition to the Note of Issue, a Statement of Proposed Disposition must also be filed. This document indicates the manner in which each spouse thinks the contested parts of the divorce should be resolved by the court. In most cases, the trial will be held within 6 months of the date of the preliminary conference.
Once judgment has been indicated on the court records, additional documents must be submitted or mailed to the Matrimonial Clerk’s Office. These documents include the Notice of Settlement, Findings of Fact and Conclusions of Law, and Judgment. This period is crucial as once the papers have been filed and signed, any changes to the settlement agreement may not be entertained easily by the court.
How to Tell Your Spouse You Want a Divorce
Divorce is a difficult topic, fraught with heavy emotions and implications. However, when it becomes inevitable, it’s crucial to approach your spouse with clarity, compassion, and respect. Here’s how to tell your spouse you want a divorce.
- Start by preparing yourself emotionally. Understand that the conversation will be difficult, and you may receive a strong reaction. Try to anticipate the emotions that may arise and think about how you’ll handle them. Consider speaking to a counselor or therapist to help navigate your feelings.
- Timing is crucial. Choose a calm, private environment and a time when both of you are not preoccupied or stressed. Do not rush the conversation; ensure you have ample time to talk things through.
- When you start the conversation, be clear and direct about your intentions. Use “I” statements to express your feelings, such as “I feel unhappy” or “I have tried, but I cannot continue”, instead of blaming your spouse. This will help you communicate your feelings without provoking defensiveness.
- While it’s important to be firm about your decision, also show empathy towards your spouse. Understand their feelings and reactions, even if they’re negative. Remember, this news is likely to be as difficult for them to hear as it is for you to tell.
- Avoid getting into the specifics of splitting assets or custody during this initial conversation. This discussion is about your emotional disconnection and the decision to divorce, not about the logistics, which can be discussed later.
Remember, it’s important to maintain respect and compassion throughout the process, despite the pain and difficulties. After all, this person was once your partner in life.
“I was very impressed with how astute, detail oriented and methodical Richard is with his work. He is experienced, technically proficient, highly effective and an excellent negotiator, who is proactive and knows the law inside and out. Richard kept me informed regularly and was responsive to all my requests and queries. All the traits that any good lawyer worth his salt should possess.”
| Category | Uncontested Divorce | Contested Divorce |
|---|---|---|
| Definition | Both spouses agree on terms of the divorce | Spouses cannot agree on terms of the divorce |
| Complexity | Generally less complex | Generally more complex |
| Legal Assistance | May not require legal assistance | Usually requires legal assistance |
| Timeframe | Can be finalized relatively quickly | May take longer to finalize |
| Cost | May be less expensive | May be more expensive |
| Required Documents | Settlement Agreement, Affidavit of Defendant (if applicable) | Request for Judicial Intervention (RJI), Net Worth Statements, Note of Issue, Statement of Proposed Disposition, and other relevant documents depending on the case |
| Court Proceedings | May not require court proceedings | May involve court proceedings such as conferences, Discovery, and trial |
| Outcome | Finalized with a signed judgment of divorce | Finalized with a signed judgment of divorce, with the court deciding on contested issues if necessary |
How to File for Divorce in New York
In order to initiate a divorce in New York, certain prerequisites must be fulfilled, such as meeting residency requirements and determining grounds for divorce. Residency requirements mandate that either you or your spouse must have resided in New York for a minimum of two consecutive years before commencing divorce proceedings, or for at least one continuous year if specific criteria are met. There are various grounds for divorce, which may comprise irreparable deterioration of the relationship, cruel and inhumane treatment, desertion, incarceration, and infidelity, among others.
Once you have established that you’ve fulfilled these requirements, you can commence divorce proceedings by paying a fee of $210 to obtain an index number for the case. In order to inform the Defendant about the filing, it is necessary to serve them with a Summons With Notice or a Summons and Verified Complaint. The Defendant may respond in three ways: file an Answer, sign the Affidavit of the Defendant, or not respond. If the divorce is uncontested, the process proceeds to calendaring, and the judge will sign the judgment of divorce.
It is recommended to seek the help of an experienced New York family law and divorce attorney to keep up with the necessary documents, set expectations on the process, and explore alternative ways to serve divorce papers. The Law Office of Richard Roman Shum provides quality and compassionate legal counsel and representation to individuals seeking to file a divorce in New York.
What Happens After Divorce Papers are Served in NY?
The divorce process starts when a spouse is served with divorce papers, a significant step in initiating a divorce case. Being served means that someone other than your spouse personally hands you the legal documents, known as a Summons and Complaint. It’s important to note that receiving divorce papers in the mail or directly from your spouse does not count as proper service.
Once you’ve been formally presented with the legal documents, you’ll assume the role of the defendant within the divorce proceedings. The papers will outline the grounds for the divorce, the relief that the plaintiff (your spouse) is seeking, and the deadline by which you must respond. It’s crucial to understand that being served with divorce papers does not signify the finalization of the divorce process. Instead, it marks the beginning of the divorce proceedings, requiring you to respond within the timeframe set by the court.
In New York State, the response period after being served is 20 days. Failing to respond within this timeframe may lead to a default judgment being issued against you, granting the divorce on the terms your spouse has requested.
To respond properly, you must file a formal written response. Your response should address all the issues raised in the divorce papers, such as child custody, child support, spousal support, and division of property. Additionally, you have the option to file a counterclaim, a claim seeking other relief from your spouse.
If you’re wondering about what happens after being served divorce papers in New York, and the subsequent actions involved, it is crucial to get assistance from a skilled Manhattan divorce lawyer. At the Law Office of Richard Roman Shum, our lawyers can guide clients through the intricacies of this process. From navigating property division to negotiating child custody arrangements and spousal support, our skilled lawyers can offer you the support and clarity needed to make informed decisions as you move forward into a new chapter of your life. Contact us to schedule a consultation.
How Long Does It Take to Finalize a Divorce in New York?
Finalizing a divorce in New York State can vary in duration depending on several factors. Generally, an uncontested divorce, where both parties agree on all terms, can be completed within three months. However, if the divorce is contested, meaning the couple disagrees on financial, property, or child custody issues, the process can take a year or longer.
The time frame begins once the divorce papers are filed with the court. An uncontested divorce moves more quickly because there are no disputes requiring court intervention. After filing, there’s a mandatory processing period that typically takes a few weeks. If both parties swiftly agree on the divorce terms and execute all necessary documents, the court can finalize the divorce without significant delays.
For contested divorces, the timeline extends considerably. The discovery phase, where parties exchange relevant information, can last for several months. Court appearances, negotiations, and potential trials add to the length of the process. It’s not uncommon for a contested divorce to take 9 to 12 months, and complex cases can extend beyond a year.
Additionally, New York has a residency requirement. Before filing for divorce, either spouse must have lived in the state for at least two consecutive years, or for one year if the couple was married in New York or lived there as a married couple.
How Can a Divorce Lawyer Help Me?
Whether you are the Plaintiff or the Defendant in a divorce action, the skills and knowledge of a New York divorce attorney can be invaluable. Although hiring an attorney to file a divorce is not strictly required in New York, an experienced divorce attorney can help you keep up with the necessary documents and set your expectations on how each step of the process may take. Richard Roman Shum, a skilled New York family law and divorce attorney, is here to help.
Richard understands the impact a prolonged divorce can have on a family. He understands how a divorce can be emotionally and financially exhausting to both parties. At the Law Office of Richard Roman Shum, Esq., we aim to provide quality legal services that help alleviate the stress and anxiety of dealing with a divorce. We present a pragmatic but compassionate approach to divorce law in an effort to provide the best possible outcome for our clients.
To schedule a free consultation with Richard Roman Shum, a skilled New York divorce attorney, contact us today at (646) 259-3416 or fill out our online form.
from Law Office of Richard Roman Shum, Esq. https://www.romanshum.com/blog/what-is-the-divorce-process-in-new-york-like/
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