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The New York Divorce Process

    

Requirements to File a Divorce in New York

If you and your spouse have decided to get divorced, chances are you’re feeling pretty overwhelmed. Luckily, we’ve taken it upon ourselves to put together this handy guide teaching you how to file for divorce in New York.

Read on to find everything you need to know about how to get through your divorce case, from filing the initial New York divorce papers to getting that final divorce decree.

Process of Filing a Divorce:

Step 1: Filing the Petition

The first step in getting your divorce case off the ground is filing the petition with your local supreme court. This document formally initiates your divorce action.

The petition establishes the filing spouse as the plaintiff and the other spouse as the defendant. Most of the time it doesn’t much matter who is the plaintiff and who is the defendant; it just means you’ll be responsible for slightly different divorce forms.

You will also indicate whether you are filing for a fault or no-fault divorce. In a fault divorce, the plaintiff alleges that specific wrongdoing on the part of the defendant led to their divorce, and then they have to prove it in court.

People opt for fault divorce because it can be satisfying, and it can sometimes (rarely) have an impact on the outcome of issues property division. However, it also tends to take a lot longer and cost a lot more than a New York no fault divorce.

Finally, you might make requests for things like child support, child custody, and alimony. These can be temporary while your divorce is pending or made permanent upon issuance of a divorce judgment.

Step 2: Serving Your Spouse

The next step in your New York divorce case is serving your spouse with the initial set of divorce documents. The purpose of this is to give your spouse formal notice that divorce proceedings have been initiated.

In New York, divorce papers can be served by anyone over age 18 who is not a party to the case. Whoever serves the divorce papers must then fill out an affidavit letting the court know that they successfully completed service.

Step 3: Your Spouse Responds

The next step in the divorce process is your spouse responding to the initial divorce papers that they received. This can happen in one of two ways.

First of all, your spouse might fill out what’s called an Affidavit of Defendant. This basically indicates that your spouse agrees to all of the information set forth in the petition, including the filing spouse’s substantive requests.

Alternatively, your spouse may instead decide to respond with an Answer, which contests at least some of the information provided in the petition.

Whether your spouse elects to file the Affidavit or the Answer determines whether you will be undergoing a contested divorce or an uncontested divorce, but we’ll get more into that a little bit later. For now, suffice it to say that the uncontested divorce process is much easier.

Now you may be asking, what happens if your spouse fails to respond at all? Well, in that case, you will be undergoing a default divorce (a.k.a. a divorce in NY without spouse signature).

Since your spouse is completely absent in a default divorce, the court will have to take your word for everything you set forth in the petition.

Step 4: Reaching a Deal/Resolving Contested Issues

The next step in the New York divorce process is figuring out how you’re going to resolve issues like child custody, child support, alimony, and the division of marital property.

If you’ve already undergone legal separation or otherwise have a preexisting separation agreement, then that separation agreement will control you, and you will undergo what’s called a conversion divorce, which entails a somewhat expedited divorce process.

If you aren’t lucky enough to already have a separation agreement, then you and your spouse will have to work out who has custody of the kids, who’s paying who what, and to whom each marital asset will go, sometimes with the help of a divorce mediator and/or other professionals.

Before we get into your options with regard to methods of dispute resolution for your divorce, let’s talk a little bit about the fundamental way these things work.

Remember how we referenced contested divorce and uncontested divorce earlier on? Well, now let’s discuss what those terms actually mean.

In an uncontested divorce, you and your spouse are able to reach a deal regarding things like child support, child custody, alimony, and property division without intervention from the court. Unsurprisingly, uncontested divorce tends to be much faster and less expensive.

In a contested divorce, you and your spouse are unable to work out these issues, so the court must make the decisions for you. New York judges have a specific set of rules and standards by which they divide up your lives via court order.

In New York, the court will divide your marital property in accordance with a scheme called equitable distribution. This means that, while some states simply split marital property down the middle, the New York court system attempts to make a holistic decision based on fairness.

Now, of course, you and your spouse are also allowed to divide your assets in any way upon which you can both agree. The court will only intervene if you are unable to reach a deal.

Now that you know the basics, let’s take a look at what your options are when it comes to reaching a deal.

First of all, there’s divorce litigation. This is what most people imagine when they think of divorce, despite it being relatively uncommon: each party hires a divorce attorney to fight on their behalf in family court.

Taking this uncooperative approach tends to make the other party equally uncooperative, so litigated divorces can sometimes go on for a period of years and end up costing you tens or even hundreds of thousands of dollars. As a result, you should really avoid litigation if you can.

Next up is collaborative divorce, in which each spouse hires their own divorce lawyer, but they also share a team of other professionals like mental health experts, child specialists, and financial specialists, who are all there to make the divorce process as peaceful as possible.

Collaborative divorce also tends to be pretty expensive (despite being cooperative in nature), because you have a lot more professionals to pay. However, it's worth the expense if it helps you reinvent your family and move on productively from an otherwise negative experience.

Next is the mid-priced option of divorce mediation, in which you and your spouse negotiate a mutually agreeable settlement with the help of a professional trained to facilitate difficult conversations.

Finally, there’s DIY divorce, which actually has two flavors, both of which are only available to couples engaged in an uncontested divorce.

In a true DIY divorce, you and your spouse will fill out all of the paperwork and meet all of the court requirements on your own, and you will only be responsible for paying the court filing fee.

The low cost is very appealing, but this option is more than many people can handle. The forms are extremely tedious (think doing your own taxes), and the court will make you redo them if they detect any mistakes.

That’s why many couples prefer to go through their DIY divorce with the help of an online divorce platform like It’s Over Easy. It’s Over Easy will fill out all of the paperwork on your behalf for a low flat rate -- $750 for the basic package, or $2500 for premium service.

If you’re interested in online divorce New York state law makes it very easy for you. In most uncontested divorce cases, you are never required to appear in court, so you can get through the entirety of your divorce from the comfort of your own home.

To learn more about how these different divorce methods (and other factors) impact what you can expect to pay for your divorce, click here: How Much Does a Divorce Cost in New York.

Step 5: The Final Judgment

Now that you’ve either worked out your own uncontested divorce deal or had a judge help you over the finish line, the only thing left to do is legally dissolve your marriage once and for all.

Your local Supreme Court will issue you a final divorce judgment, and your divorce certificate will become a public record. Congratulations, you are no longer married!

Child Custody Issues in New York

New York courts make custody decisions based on what is in the best interest of the child, and joint custody is presumed to be in the child’s best interest. Only in extreme cases like abuse or neglect will a parent be awarded sole custody.

Now, how custody is divided between the two parents can still get pretty complicated. You may not realize that there are actually two totally distinct types of child custody: physical and legal.

Physical custody refers to who physically has the child in their care. The parent who cares for the child the majority of the time is generally referred to as the custodial parent, and the parent who has the child for a minority of the time is generally called the non-custodial parent.

Legal custody refers to who is responsible for making important decisions on behalf of the child when it comes to things like medical treatment, education, and religion.

Alimony in New York

New York has a specific formula for determining how much alimony (a.k.a. spousal support or spousal maintenance) should be paid to whom. Thus, you can figure out how a court would rule on these issues even if you’re undergoing an uncontested divorce.

Of course, if you are able to work with your spouse in an uncontested divorce, the two of you are allowed to work out any support number that works for you, so long as it is freely negotiated.

Child Support in New York

Much like spousal maintenance, child support comes with its own specific formula based on each parent’s income and parenting time. In the event that you’re unable to negotiate a deal on your own and must defer to a judge, this is the number that the court will go with.

As with spousal support, you and your ex also have the option of negotiating your own child support figure.

However, you can expect a little more oversight from the court with regard to approving the number you come up with. It’s unlikely that the court will intervene, but if the support figure appears obviously against your child’s best interest, they do have the discretion to do so.

Frequently Asked Questions

How much does it cost to file for divorce in New York?

The basic divorce filing fees come out to $335, but you can expect to pay a little more depending on the circumstances of your particular case.

However, this number only includes the court fees, which is generally a fraction of the overall cost of divorce. The overall cost is highly dependent on the method of divorce that you choose, discussed in greater depth above.

How long does the divorce process take in New York?

How long does it take to get a divorce in New York?” might have been your very first question. After all, you want to get this over with as soon as possible.

Luckily, unlike many other states, there is no New York divorce law waiting period. However, even the simplest uncontested case tends to take at least six months, because New York courts have a lot on their dockets.

On the other hand, highly contentious litigated divorces can go on for a period of years. The more you can learn to cooperate with your spouse, the sooner you can put this unpleasantness behind you.

Do you need an attorney to file for divorce in New York?

Attorneys are incredibly expensive, so luckily, you do not! However, you’ll probably at least want to work with an online platform, because all that paperwork can be extremely challenging for someone without a legal or finance background.

What if your spouse contests?

First of all, you’re going to want to take a deep breath. An uncontested divorce is undeniably easier, but you can get through this.

After that, you should probably start looking for a good attorney. Contested cases can get extremely complicated, and you’re going to want to seek the advice of someone who fully understands your unique situation.

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