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Divorce 101–A General Overview of the Divorce Process in New York State

Although divorce is common in our culture, couples and individuals who face the reality of a divorce process often feel shocked, not knowing where to begin or how to proceed.  I have worked with clients pursuing divorce for more than 20 years and understand the complexities and the enormous importance of finding solutions that work for you, your spouse, and your children.  Please contact my office if I may be of service to you at any time during your contemplated divorce or during the divorce process.

Below is a summary of basic divorce information in NY State that is taken from the website of the New York State Unified Court System (www.nycourts.gov).  I recommend reviewing this website for more detailed information, and contact me directly if you are seeking legal services.

What is a divorce? 

Divorce, also known as a matrimonial action, is the final, legal ending of a marriage by court order. The spouse who starts the divorce is called the plaintiff, and the other spouse is called the defendant.

Where do I go to for a divorce?

The Supreme Court of the State of New York is the only court that handles divorce cases, and a Supreme Court judge is the only person who can legally grant a divorce. In most instances, you should go to the Supreme Court in the county where you or your spouse now live. You cannot get a divorce in Family Court.

Although Family Court cannot give you a divorce,  your local Family Court  can provide  help  with child support, child custody, child visitation, spousal support (also known as spousal maintenance), and paternity. Visit CourtHelp.org for more information on choosing the right court for your particular issue.

How do I start a divorce case? 

You will need an Index Number obtained from the County Clerk’s Office. This unique number is assigned by the County Clerk’s office to every action or proceeding commenced within the New York State Supreme Court.   You must also file with the County Clerk a Summons with Notice or a Summons and Verified Complaint setting forth the basis for the divorce. Next, you will need to have your spouse served with these papers. Another person over the age of 18, who is not a party to the action can serve your spouse with the papers.

Do I need a lawyer to get divorced?

Because divorce law can be complicated, you should meet with a lawyer — even if you think your divorce will be uncontested. If you and your spouse have resolved all financial and parenting issues, and you do not have a lawyer, you can use the free Uncontested Divorce Forms Packet available at the county clerk’s office or online.

If you have parenting or financial issues to resolve, you may want to consider an alternative dispute resolution (ADR) processes like divorce mediation or collaborative family law.  ADR may not be appropriate in cases involving domestic violence, child abuse, or where one spouse cannot locate the other.

To start a divorce case, what legal requirements do I need to meet?

 (1) Residency: Before a New York Court can grant you a divorce, you must show that you and/or your spouse have lived in New York State without interruption, generally for one year.

(2) Grounds:  To be granted a divorce in New York, you must be able to prove one of the following reasons (grounds) listed below and defined via the link:

What is the Equitable Distribution Law?

 New York’s Equitable Distribution Law recognizes marriage as an economic as well as a social partnership. The law requires that a judge divide property as fairly as possible.

The Equitable Distribution Law talks about two types of property for purposes of divorce: marital property and separate property. Marital property will be divided between the two spouses.

Marital Property: All property either spouse bought during the marriage, regardless of whose name is on the property. Pension plans and other retirement plans are considered marital property. The portion of marital property earned during the marriage will be divided by the court.

Separate Property: Property a spouse owned before the marriage, or any inheritance or personal injury payments or gifts from someone other than the spouse during the marriage.

To see the factors a court should consider in making an equitable distribution award, see Domestic Relations Law § 236(B)(5)(d).

What are the conditions that justify alimony (spousal maintenance)?

Spousal maintenance (alimony) is money an ex-spouse may be required to pay the other spouse after a divorce. Temporary maintenance is money a spouse may be required to pay the other spouse while the action is pending in contested actions.  Legislation was passed in 2015 providing guidelines for both types of maintenance. For more information, see http://www.nycourts.gov/DIVORCE/Maintenance

Should you consider legal representation in a contested divorce? 

 Yes. Because the judge will require detailed information to decide the issues you disagree about, your contested divorce will require you and your spouse to appear before the Supreme Court many times. If your divorce will be contested, you should consider obtaining legal representation.