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While divorce laws in New York are not the most stringent in the country, the process can still be very difficult for couples who never thought their marriages would end this way.
As such, it is important to do everything possible to make the divorce process easier on both parties and any children that may be involved. This includes knowing the right steps to take to get a divorce finalized in a New York state court.
Having an Albany divorce attorney overseeing every step of the process is the best way to ensure that all requirements are met, including divorce forms and the filing fee that is required.
The experienced team of lawyers at Divorce and Family Legal is dedicated to helping Albany residents get through this difficult process in the best way possible. A free consult can be booked by calling the office. They can also help with questions like how long does it take to get divorce papers in NY?
Qualifying for a Divorce in New York
To be eligible to get a divorce in New York, the applicant has to meet the following minimum requirements:
1. Grounds for Divorce
New York law requires that the applicant have valid grounds for filing for a divorce from their partner.
These grounds can be in support of a fault divorce in which the plaintiff accuses the defendant of wrongful conduct that led to the divorce, such as:
Adultery
Imprisonment for three or more years
Abandonment for at least a year
Cruel treatment
When filing for a no-fault divorce, no blame will be placed on either party and the divorce can be considered only on the grounds of:
Separation agreement or a legal separation decree accompanied by evidence of living apart for more than a year
An irretrievable breakdown of the marriage for at least six months (where both spouses fail to get along and there is no reasonable expectation that they will any time soon)
2. Residency Requirements
Another requirement that applicants need to file for divorce in New York has to do with residency. It can be met in either of the following ways:
The couple was married in the state, lived in New York as a married couple, or one party resided there for at least one year before the divorce papers were filed
One spouse has resided in New York for at least two years before filing for a divorce
How to File for an Uncontested Divorce in New York
Between a contested and an uncontested divorce, the latter is the easier option to get through the county clerk's office and receive a signed judgment.
Without any disputes over issues such as child support, no judicial intervention is required, and the applicant can get the divorce papers filed and signed off in the following steps:
Step 1: Filing Divorce Papers With the County Clerk's Office
The first step in the legal process is often to file for divorce through the county clerk's office. These papers are usually in the form of a "Summons and Complaint" or a "Summons With Notice."
If the filing is being done online, the plaintiff can use the New York State Courts Electronic Filing system (NYSCEF). A few important notes to remember when filing papers with the county clerk's office are as follows:
The plaintiff is the spouse who files for divorce, and the defendant is whoever will receive the summons.
A filing fee of $210 is required before an index number can be issued for the divorce case.
In cases where the plaintiff does not have money to pay the filing fee, they can request a fee waiver.
If there is a settlement agreement already in place, it should be filed at the same time as the divorce papers.
When the whereabouts of the defendant are unknown, the plaintiff can enquire about an alternative service that they can use.
In cases where a marriage has been over for at least six months, and there are no children involved, the plaintiff can use the DIY Uncontested Divorce Program to expedite the filing process.
Step 2: Serving the Other Spouse (Defendant)
A process called service is the next step in which the defendant is served the divorce papers personally. Here, too, there are some important things to remember, such as:
The plaintiff has 120 days from the filing date to serve the defendant.
Someone else over the age of 18 other than the plaintiff must serve the divorce papers to the defendant.
Once the papers have been served, the person responsible must complete an Affidavit of Service to prove that the defendant was served in the right way.
Step 3: Response From the Defendant
There are three ways in which the defendant may choose to respond to the "Summons and Complaint" or "Summons With Notice," and these are:
The defendant signs the papers called "Affidavit of Defendant" and chooses not to contest the divorce.
They can choose to respond by serving the plaintiff with an "Answer" and filing it with the Supreme Court clerk's office. This means the divorce will become a contested case.
The defendant chooses to default by not responding in any way.
Step 4: Calendaring/Scheduling
Next, is the calendaring process, where the "Affidavit of Defendant" (or when the defendant defaults) is filed with the county clerk or Supreme Court clerk's office, depending on the state.
A filing fee of $125 or a form indicating the granting of a fee waiver must be submitted at the same time as the "Request for Judicial Intervention" and "Note of Issue" papers.
Step 5: Judgement for the Divorce
If it is an uncontested divorce and the case is approved, the judge will sign the Judgement of Divorce (a copy will be given to the defendant).
The plaintiff must pick up the Judgement of Divorce or have it mailed to them, after which they will file it with the county clerk's office.
What to Do When Dealing With a Contested Divorce Case
Everything is a lot simpler when dealing with an uncontested divorce. Here, there is no need to worry about filing a child support summary form or fighting for spousal support. As long as the defendant signed the "Affidavit of Defendant," the Judgement of Divorce will likely be granted. Divorce and Family Legal can help with other questions such as what happens after divorce papers are served in NY?
However, If the defendant signs the "Answer" papers and submits them to the clerk's office, the plaintiff may have a battle on their hands. This is when getting a good lawyer becomes important.
Divorce and Family Legal has the capacity and experience to handle any type of situation that may arise during the filing of a divorce in New York. The doors at its Albany law firm are always open for a free case evaluation.