THE ABC'S OF OBTAINING A DIVORCE IN NEW YORK STATE
Many of my clients are confused about filing for a divorce. Today I am discussing grounds, residency requirements and procedure for obtaining a divorce in New York State. While New York enjoys certain peculiarities, many of the grounds for divorce and procedure overlap with other states such as New Jersey, Connecticut, and Florida.
Contrary to the popular belief, “an action for divorce” is not commenced in the family court. In New York, a person seeking a divorce will have to go to the local Supreme Court (trial court), which is a court of general jurisdiction. Like other actions, a divorce action is started by filing a summons and complaint, or a summons with notice. Before drafting and filing the needed paperwork, first, a person must consider whether he or she has a valid ground for divorce, and second, whether he or she meets residency requirements which must be fulfilled before a court issues a valid divorce decree. In turn, we will look at the grounds for divorce and the residency requirements. We will conclude with further discussion about the procedure of filing for a divorce.
GROUNDS FOR DIVORCE
The complaint for divorce, which is prepared and filed by the party who is seeking the divorce, called the plaintiff, and the complaint must allege one or more grounds for the divorce and any other secondary relief. The most common secondary relief is custody or visitation, child support, maintenance, equitable distribution, exclusive occupancy, legal fees, and expert fees and any other appropriate relief under the circumstances. The following are the New York State grounds for divorce: Abandonment in excess of one year; constructive abandonment where either spouse has refused to have sexual relations for more than one year; adultery;cruel and inhumane treatment; imprisonment for three consecutive years with the imprisonment commencing after marriage; living separate and apart pursuant to a separation judgment or decree; and living separate and apart pursuant to a separation agreement. While some other states recognize no-fault grounds for divorce, such as "irreconcilable differences", New York does not. All acts that give rise to grounds of divorce must have occurred within 5 years of filing for divorce.
Abandonment requires that the Defendant abandons Plaintiff for a period of more than one year without any intentions of returning. Constructive abandonment is a legal fiction where courts recognize a refusal to have sex for over one year and continuing to the present without consent, good cause or justification as a basis for divorce. Where a spouse is locked out of the marital home for over one year prior to the commencement of the action, which too is grounds for an abandonment based divorce.
In situations where one spouse engages in sexual or deviant sexual intercourse with another person while married to the other spouse, while it is technically possible to maintain a divorce action based on the spouse’s acts of adultery, because of the heightened standard of proof in adultery cases, it may not be the best ground under which to maintain a divorce action. Often, parties choose to base their divorce on the ground of cruel and inhuman treatment. Despite the way it sounds, it simply means that because of the spouse's treatment, the plaintiff spouse's physical or mental well-being is endangered and it is unsafe or improper for the plaintiff spouse to continue living with the defendant spouse. Adultery often qualifies as acts of cruelty.
Separation-based divorces are either based on a Judgment of Separation or on a Separation Agreement. In a limited number of instances, parties will have a Judgment of Separation from a judge of the Supreme Court. After a year of living separate and apart pursuant to the Judgment of Separation, divorce may be granted. Where the spouse has a Separation Agreement signed before a Notary Public and filed with the County Clerk where one of the parties resides, a conversion divorce is available. The spouses must live separate and apart for more than one year according to the terms of the properly executed separation agreement before one can take steps to start a divorce action.
RESIDENCY REQUIREMENTS
Even if a spouse has a valid ground for divorce, there exist certain residency requirements which must be fulfilled before the court will consider an action for divorce. In New York, you may seek a divorce only if you meet one of these residency requirements: The marriage ceremony was performed in New York and either spouse is a resident of the State at the time when the divorce action is started, and resided in the State for a continuous period of one year immediately before the action began; or the spouses lived as husband and wife in New York and either spouse is a resident of New York State at the time when the divorce action is started, and resided in this State for a continuous period of one year immediately before the action began; or the grounds for divorce occurred in New York State and either spouse is a resident of the State at the time the action is commenced and resided in this State for a continuous period of one year immediately before the action began; or the grounds for divorce occurred in New York State and both spouses are New York residents at the time action is commenced; or if the spouses were married outside of New York and never lived as husband and wife in this State and the grounds for divorce occurred outside of the State, then either spouse must be a present resident of New York and have resided continuously in the State for at least two years prior to bringing an action for divorce in New York. Without meeting of these five grounds, one can not get divorced in New York.
PROCEDURE OF FILING FOR A DIVORCE
Before the summons and complaint or the complaint with notice may be filed, a filing fee of $210 dollars has to be paid to obtain a unique index number assigned to the case. The filing spouse will be called the Plaintiff and the nonfiling spouse is the Defendant. The nonfiling spouse is usually required by law to be personally served with the divorce documents, and another fee will apply for the process server. Getting served with papers enables the other spouse to be placed on notice of the allegations and relief asserted against him or her. Only then will the non-filing spouse have the ability to defend the allegations contained in the complaint. Without proper service of process, there can be no valid action for a divorce or any other matter.
Many of my clients are confused about filing for a divorce. Today I am discussing grounds, residency requirements and procedure for obtaining a divorce in New York State. While New York enjoys certain peculiarities, many of the grounds for divorce and procedure overlap with other states such as New Jersey, Connecticut, and Florida.
Contrary to the popular belief, “an action for divorce” is not commenced in the family court. In New York, a person seeking a divorce will have to go to the local Supreme Court (trial court), which is a court of general jurisdiction. Like other actions, a divorce action is started by filing a summons and complaint, or a summons with notice. Before drafting and filing the needed paperwork, first, a person must consider whether he or she has a valid ground for divorce, and second, whether he or she meets residency requirements which must be fulfilled before a court issues a valid divorce decree. In turn, we will look at the grounds for divorce and the residency requirements. We will conclude with further discussion about the procedure of filing for a divorce.
GROUNDS FOR DIVORCE
The complaint for divorce, which is prepared and filed by the party who is seeking the divorce, called the plaintiff, and the complaint must allege one or more grounds for the divorce and any other secondary relief. The most common secondary relief is custody or visitation, child support, maintenance, equitable distribution, exclusive occupancy, legal fees, and expert fees and any other appropriate relief under the circumstances. The following are the New York State grounds for divorce: Abandonment in excess of one year; constructive abandonment where either spouse has refused to have sexual relations for more than one year; adultery;cruel and inhumane treatment; imprisonment for three consecutive years with the imprisonment commencing after marriage; living separate and apart pursuant to a separation judgment or decree; and living separate and apart pursuant to a separation agreement. While some other states recognize no-fault grounds for divorce, such as "irreconcilable differences", New York does not. All acts that give rise to grounds of divorce must have occurred within 5 years of filing for divorce.
Abandonment requires that the Defendant abandons Plaintiff for a period of more than one year without any intentions of returning. Constructive abandonment is a legal fiction where courts recognize a refusal to have sex for over one year and continuing to the present without consent, good cause or justification as a basis for divorce. Where a spouse is locked out of the marital home for over one year prior to the commencement of the action, which too is grounds for an abandonment based divorce.
In situations where one spouse engages in sexual or deviant sexual intercourse with another person while married to the other spouse, while it is technically possible to maintain a divorce action based on the spouse’s acts of adultery, because of the heightened standard of proof in adultery cases, it may not be the best ground under which to maintain a divorce action. Often, parties choose to base their divorce on the ground of cruel and inhuman treatment. Despite the way it sounds, it simply means that because of the spouse's treatment, the plaintiff spouse's physical or mental well-being is endangered and it is unsafe or improper for the plaintiff spouse to continue living with the defendant spouse. Adultery often qualifies as acts of cruelty.
Separation-based divorces are either based on a Judgment of Separation or on a Separation Agreement. In a limited number of instances, parties will have a Judgment of Separation from a judge of the Supreme Court. After a year of living separate and apart pursuant to the Judgment of Separation, divorce may be granted. Where the spouse has a Separation Agreement signed before a Notary Public and filed with the County Clerk where one of the parties resides, a conversion divorce is available. The spouses must live separate and apart for more than one year according to the terms of the properly executed separation agreement before one can take steps to start a divorce action.
RESIDENCY REQUIREMENTS
Even if a spouse has a valid ground for divorce, there exist certain residency requirements which must be fulfilled before the court will consider an action for divorce. In New York, you may seek a divorce only if you meet one of these residency requirements: The marriage ceremony was performed in New York and either spouse is a resident of the State at the time when the divorce action is started, and resided in the State for a continuous period of one year immediately before the action began; or the spouses lived as husband and wife in New York and either spouse is a resident of New York State at the time when the divorce action is started, and resided in this State for a continuous period of one year immediately before the action began; or the grounds for divorce occurred in New York State and either spouse is a resident of the State at the time the action is commenced and resided in this State for a continuous period of one year immediately before the action began; or the grounds for divorce occurred in New York State and both spouses are New York residents at the time action is commenced; or if the spouses were married outside of New York and never lived as husband and wife in this State and the grounds for divorce occurred outside of the State, then either spouse must be a present resident of New York and have resided continuously in the State for at least two years prior to bringing an action for divorce in New York. Without meeting of these five grounds, one can not get divorced in New York.
PROCEDURE OF FILING FOR A DIVORCE
Before the summons and complaint or the complaint with notice may be filed, a filing fee of $210 dollars has to be paid to obtain a unique index number assigned to the case. The filing spouse will be called the Plaintiff and the nonfiling spouse is the Defendant. The nonfiling spouse is usually required by law to be personally served with the divorce documents, and another fee will apply for the process server. Getting served with papers enables the other spouse to be placed on notice of the allegations and relief asserted against him or her. Only then will the non-filing spouse have the ability to defend the allegations contained in the complaint. Without proper service of process, there can be no valid action for a divorce or any other matter.
It should be noted that an action for divorce is not the only action that a person seeking to get out of a marriage can bring. In lieu of a divorce, one can bring an action for separation or an action to declare the nullity of a void marriage. You will have to consult with your attorney what is the best vehicle to bring about change to your marital status.
CONTESTED AND UNCONTESTED DIVORCES
In situations where parties can agree about child support and the division of marital property, the non-filing spouse will not answer the complaint in order to challenge the divorce sought by the filing spouse. Such an amicable divorce, called an uncontested divorce, is usually simpler and inexpensive.
However, parties to a divorce rarely agree on all of the crucial matters. In that case, the non-filing spouse would answer the filing spouse’s complaint. In the answer, he or she will admit or deny the allegations listed in the complaint and may raise affirmative defenses. The answering spouse may even counter-sue for a divorce in the answer. The plaintiff may then file a reply to the defendant’s answer to respond to any counterclaims. Any defenses or counterclaims not raised in the pleadings will not be allowed to be raised at trial.
Before going to trial, there will be a period during which Net Worth Statements will be prepared, pensions and real estate appraised, documents requested and sent, written and oral questions answered by both parties, etc. Where children are involved, the court may appoint a guardian to represent the child’s interests. The guardian would then be paid by either the state or the spouses.
After all the necessary information has been exchanged among the parties and all the motions made and decided, the case will be scheduled for trial. During the trial, the plaintiff will present his or her case first by testifying, calling witnesses, and submitting any documentary evidence in support of his or her position. The defense will have the opportunity to cross examine the plaintiff's witnesses. At the conclusion of the plaintiff's case, the defendant presents his or her case, can testify, call witnesses and any documentary evidence. At the end of the trial, the court will issue a decision, either in writing or on the record, which will address all issues raised in the divorce. Only after a judgment of divorce is prepared and signed by the court, the parties are actually divorced.
If you have any other questions about obtaining a divorce in New York, New Jersey or Florida, please contact my office for a confidential consultation. 212-267-0200 www.MarzecLaw.com dmarzec@marzeclaw.com
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