The divorce process can be overwhelming. Nobody expects to end a marriage, and when it happens, you are faced with a world of uncertainty.
Where am I going to live? What happens to our children? Can I financially support myself alone? What happens to our personal property, including our house, furnishings, art and other valuables?
Understanding the rules governing divorce in New York will help you navigate the process with confidence and peace of mind.
A divorce may only be granted by the Supreme Court. Parties to a divorce must comply with rules and court procedures set forth in the Domestic Relations Law (“DRL”), Civil Practice Law and Rules (“CPLR”) and the New York Court Rules and Regulations (“NYCRR”). The party initiating the divorce will be titled “plaintiff” and the other party will be titled “defendant.”
Residency Requirements for Divorce in New York
To pursue a divorce in New York, a couple must meet one of the following residency requirement found in DRL §230:
- The parties were married in New York, and either party lived in New York for one year prior to filing.
- The parties resided in New York as husband and wife, and either party lived in New York for one year or more prior to filing.
- The cause of action occurred in New York, and either party lived in New York for one year or more prior to filing.
- The cause of action occurred in New York, and both parties lived in New York at the time of filing.
- Either party has lived in New York for two years or more prior to filing.
Grounds for Divorce in New York
There are seven grounds for divorce specified in DRL §170:
- Cruel and inhuman treatment: When cohabitation puts a spouse in physical, mental, or emotional danger.
- Abandonment: There are two types of abandonment: actual abandonment and constructive abandonment. Actual abandonment occurs when one spouse leaves the marriage and stays away for at least one year prior to the commencement of a divorce action. Constructive abandonment occurs when one spouse refuses to engage in sexual relations with the other spouse, without excuse or justification, for a period of at least one year preceding the filing of a divorce action.
- Adultery: The commission of an act of sexual or deviate sexual intercourse, voluntarily performed by the defendant, with a person other than the plaintiff. The act must take place after the marriage of the plaintiff and the defendant. (Deviate sexual intercourse includes, but is not limited to, sexual conduct as defined in Penal Law 130:00, subd. 2, and Penal Law 130:20, subd. 3.)
- Imprisonment: If a spouse is sent to jail for at least three consecutive years after the marriage took place.
- Living Apart Pursuant to a Separation Judgment: The couple lives separate and apart, pursuant to a decree or judgment of separation for period of one or more years after granting of such decree or judgment of separation.
- Separation Agreement: The couple lives separate and apart, in compliance with an official “Agreement of Separation” for at least one year.
- Irretrievable breakdown: An irreversible breakdown of the relationship for at least six months.
Even if the circumstances of your divorce involve these grounds, there is a burden of proof that may affect your ability to file on such grounds. Always seek the advice of a New York divorce attorney before making this strategic decision.
Where Do I Start?
To legally commence an action for divorce, you must complete and file a Summons and Complaint or a Summons with Notice pursuant to CPLR §304. The fee to commence an action for divorce is $210.
When the action is commenced, you will be assigned an index number. This number will accompany all future documents filed with the divorce in your action. The Summons and Complaint (or Summons with Notice) must be personally served to the defendant by a person over the age of 18 who is not the plaintiff.
An experienced New York divorce attorney can help you file the correct forms with the correct information and ensure that service of the documents is properly made.
Avoid Early Mistakes
Impulsive decisions made in the early stages of a separation or divorce can lead to mistakes that sabotage your final settlement. Consult our list of essential pre-divorce tips before taking any major action.
There is full disclosure in connection with a divorce action. “Discovery” is the term used to describe how each side obtains the information needed to proceed with the case (i.e., the disclosure). Usually, discovery occurs after the pleadings have been filed, but it can start before the complaint is served.
If the parties cannot agree to a timeline for exchanging documents, a discovery schedule will be set by the Court. One of the most important documents the parties to a divorce action will complete is the Statement of Net Worth (“SNW”). The SNW is a sworn statement listing the party’s budgetary needs, assets, liabilities, and sources of income.
The SNW becomes a “road map” for the divorce and guides the attorney on how to best protect a party’s interest throughout the divorce. The SNW also enables the attorneys to determine whether valuation experts or appraisers will need to be retained in connection with the divorce.
Hire a New York Divorce Lawyer
New York divorce law is constantly changing. Skip the general law practices and consult an attorney who is exclusively focused on divorce and family law.
The divorce lawyers at Arons & Solomon have good working relationships with family court judges and access to a network of key professionals, including: financial planners, private investigators, forensic accountants, mental health counselors, process servers, and more.
Contact us to organize the facts of your case and develop an approach that serves the best interests of your family.