How do I file for divorce in New York? 

To commence an action for divorce in New York, you must follow these steps:

1. Determine whether you meet the state’s residency requirements. New York has different time requirements for residency based upon the place of marriage, the place that the grounds for divorce occurred and the current residencies of the parties.  These residency requirements apply no matter the ground for divorce being alleged.
2. In New York, you can commence an “uncontested” divorce or a “contested” divorce. An uncontested divorce is one in which both parties agree on all issues, including child custody, child support, alimony, and division of property. A contested divorce is one in which the parties do not agree on one or more of these issues.
3. Gather all necessary documents. You will need to provide financial documents (such as tax returns, pay stubs, and bank statements) that relate to your marriage.
4. File the divorce summons and complaint and all other necessary documents with the County Clerk. You must file the documents in the county where either you or your spouse lives.
5. Have your spouse served with the divorce papers. You may not personally deliver the divorce papers to your spouse, but must have someone over the age of 18 do it for you.
6. Attend any required court hearings. In an uncontested divorce, you may not have to attend any court hearings. However, in a contested divorce, you will need to attend court hearings to resolve any disputes.
7. Obtain a Judgment of Divorce. Once all issues have been resolved and the court has granted the divorce, you will receive a judgment of divorce. This is the legal document that officially ends your marriage.

It’s important to note that the divorce process can be complex and time-consuming, and it’s advisable to retain an attorney to ensure that your rights are protected.

What is the process for getting a divorce in New York?

The process for getting a divorce in New York typically involves the following steps:

1. One spouse, known as the plaintiff, must file a divorce summons (or a summons and complaint) with the County Clerk. The complaint must include information about the marriage, such as the date and place of the marriage, the grounds for divorce, and the relief requested.
2. Serve the other spouse: The petitioner must then have the other spouse, known as the defendant, served with a copy of the divorce summons and complaint. This must be done through personal service except under very limited circumstances.
3. Wait for a response: The defendant has a certain amount of time to answer the divorce complaint. If they do not respond, the plaintiff can ask the court for a default judgment of divorce.
4. Attend a preliminary conference: If the defendant does respond, the court will schedule a preliminary conference. During this conference, the judge will try to help the parties reach an agreement on issues such as child custody, property division and spousal support.
5. If no settlement is reached, the parties must exchange financial documents and submit to other disclosure demands.
6. Attend a settlement conference: If an agreement is not reached during the preliminary conference, the court will schedule a settlement conference. This is an opportunity for the parties to try to reach an agreement with the help of a judge or mediator.
7. Attend a trial: If the parties are unable to reach an agreement, the case will go to trial. A judge will make a decision on issues such as child custody, property division, and spousal support.
8. Obtain a judgment of divorce: Once all the issues have been resolved, the court will issue a judgment of divorce. This legally ends the marriage.

It’s important to note that the actual process and the time frame for a divorce can vary depending on the specific circumstances of the case, and whether there are any disputes between the parties. It is also advisable to obtain legal advice from a licensed attorney in New York who can guide through the process.

How do I know if I am eligible for a divorce in New York?

To be eligible for a divorce in New York, you must meet the state’s residency requirements.  Factors considered are the place of marriage, the place that the grounds for divorce occurred, and the current residence of the parties.

In addition, you must be able to show that your marriage is irretrievably broken or that one of the grounds for divorce listed in New York state law (adultery, cruelty, or abandonment) has been met.

It’s important to note that New York is a “no-fault” divorce state, which means that you do not have to prove that your spouse did anything wrong in order to get a divorce. All you need to show is that your marriage is irretrievably broken and has been for at least the past six months.

If you are not sure whether you are eligible for a divorce in New York, it’s a good idea to retain an attorney who can advise you on your specific situation.

How do courts decide on child custody during a divorce in New York?

When deciding on child custody during a divorce in New York, courts consider the best interests of the child. This means that the court will consider a variety of factors to determine what arrangement will be in the child’s best interests, including:

1. The child’s age, sex, and physical and emotional health
2. The child’s relationships with each parent and any siblings
3. The child’s home environment and school performance
4. Each parent’s ability to provide for the child’s physical and emotional needs
5. Each parent’s willingness to encourage a relationship between the child and the other parent
6. Any history of abuse or neglect by either parent
7. Any other relevant factors

In many cases, courts will award joint legal custody to the parents, which means that both parents will make decisions about the child’s upbringing.  Joint physical custody means that the child’s time is divided between the parents. However, in some cases, a court may award sole physical and legal custody to one parent, which means that the child will live with that parent and that parent will have the primary responsibility for making decisions about the child’s upbringing.

It’s important to note that courts will always prioritize the best interests of the child in custody decisions, and will consider the needs and well-being of the child above any other considerations. If you are involved in a child custody dispute, it’s a good idea to retain an attorney who can help you understand and protect your rights and advocate for your interests.

How is property divided during a divorce in New York?

During a divorce in New York, the court will divide the couple’s marital property and assets according to the principles of “equitable distribution.” This means that the court will divide the property in a way that is fair, but not necessarily equal.

In determining how to divide the property, the court will consider a number of factors, including:

1. The length of the marriage
2. The age and health of each spouse
3. The income and property of each spouse at the time of the divorce
4. The future financial prospects of each spouse
5. Any contributions made by one spouse to the education or career of the other
6. Any debts or liabilities incurred during the marriage
7. Any award of maintenance or spousal support (alimony)
8. Any other relevant factors

Marital property is generally defined as any property acquired by either spouse during the marriage, with some exceptions. Non-marital property, or separate property, is property that was acquired by one spouse before the marriage or through inheritance or gift, or an award for personal injuries. Non-marital property is generally not subject to division during a divorce.

It’s important to note that dividing property during a divorce can be complex, and it’s advisable to retain an attorney who can help you understand and protect your rights and advocate for your interests.

How is alimony or spousal support determined during a divorce in New York?

During a divorce in New York, the court may award alimony, also known as maintenance or spousal support, to one spouse.  A statutory formula comparing the incomes of each spouse results in the “presumptively correct” amount, which is rebuttable.  Alimony may be awarded on a temporary or permanent basis, depending on the circumstances of the case.

In determining whether to award alimony and, if so, in what amount, the court will consider a number of factors, including:

1. The income and property of each spouse at the time of the divorce
2. The length of the marriage
3. The age and health of each spouse
4. The present and future earning capacity of each spouse
5. The need for education or training to become self-supporting
6. The standard of living established during the marriage
7. The availability and cost of health insurance
8. Care of children that inhibits a party’s earning capacity
9. Domestic violence
10. Any other relevant factors

It’s important to note that alimony is not automatically granted in every divorce case, and the court has discretion to decide whether to award it and in what amount. If you are seeking alimony or believe you may be required to pay it, it’s a good idea to retain an attorney who can advise you on your specific situation.

Can I get a divorce in New York if my spouse doesn’t want one?

Yes, you can get a divorce in New York even if your spouse does not want one. New York is a “no-fault” divorce state, which means that you do not need to prove that your spouse did anything wrong in order to get a divorce. All you need to show is that your marriage is irretrievably broken and that it has been for at least the past six months.

If your spouse does not agree to a divorce, this is a “contested” divorce, which means that you and your spouse will need to go to court to resolve any disputes regarding the terms of the divorce, such as child custody, child support, alimony, and division of property.

It’s important to note that the divorce process can be complex and time-consuming, and it’s advisable to retain an attorney to ensure that your rights are protected.

How long does the divorce process take in New York?

The length of the divorce process in New York can vary depending on a number of factors, including:

1. Whether the divorce is contested or uncontested: An uncontested divorce, in which both parties agree on all issues, can typically be completed more quickly than a contested divorce, in which the parties do not agree on one or more issues.
2. The complexity of the case: Divorces that involve complex issues such as a large estate, business interests, or significant assets can take longer to resolve than simpler cases.
3. The availability of the court: The court’s schedule can also impact the length of the divorce process.

In general, the divorce process in New York can take several months or more to complete, depending on the specific circumstances of the case.

It’s important to note that the divorce process can be complex and time-consuming, and it’s advisable to retain an attorney to ensure that your rights are protected.

Do I need a lawyer to get a divorce in New York?

While it is not required that you have a lawyer to get a divorce in New York, it is highly recommended that you at least consult with an attorney to understand your rights and responsibilities during the divorce process. An attorney can also help you navigate the legal system, ensure that your interests are protected, and advocate for your rights in court.

In some cases, it may be possible to handle a divorce without the assistance of an attorney, especially if the divorce is uncontested and the parties are able to agree on all issues. However, even in an uncontested divorce, it is still a good idea to retain an attorney to ensure that the terms of the divorce are fair and that your rights are protected.

If you are involved in a contested divorce or have complex issues to resolve, such as a large estate or business interests, it is especially important to have an attorney to represent you and advocate for your interests.

It’s important to note that the divorce process can be complex and time-consuming, and it’s advisable to consult with and retain an attorney to ensure that your rights are protected.

Can I get an annulment instead of a divorce in New York?

An annulment is a legal proceeding that declares a marriage to be void or invalid, as if it never existed. In New York, you may be able to obtain an annulment under certain circumstances, rather than a divorce.

In order to obtain an annulment in New York, you must be able to show that your marriage is void or voidable, which means that it was not legally valid from the beginning or that there was a defect in the marriage that made it invalid. Some examples of grounds for annulment in New York include:

1. Incest: If the parties are closely related by blood, the marriage is void.
2. Bigamy: If one party was already married to someone else at the time of the marriage, the marriage is void.
3. Mental incompetence: If one party was unable to understand the nature of the marriage due to mental illness or deficiency, the marriage may be voidable.
4. Force, duress or fraud: If one party forced or deceived the other party into entering the marriage, the marriage may be voidable.
5. Underage: If one party was under the age of 18 at the time of the marriage and did not have the consent of a parent or guardian, the marriage may be voidable.
6. Incurable mental illness: A marriage may be annulled if one of the parties has been incurably mentally ill for five years or more.

It’s important to note that annulments are rare and are granted only in limited circumstances. If you are seeking an annulment, it’s a good idea to consult with an attorney who can advise you on your specific situation.