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New York Divorce Process
Preparing the Divorce Papers
Filing the Paperwork with the Court
A New York divorce involves filling out and filing many court forms even when the divorce is uncontested. The forms and instructions for an uncontested divorce are available on the New York Courts website in the Uncontested Divorce Packet.
The first step is completion of the Summons With Notice (Form UD-1) or the Summons (Form UD-1a) and Verified Complaint (Form UD-2). The Summons begins the divorce action in the Supreme Court; it identifies the filer as the plaintiff and the other spouse as defendant. The plaintiff may file in the Supreme Court in the county where either spouse resides.
The choice between using a Summons With Notice and a Summons and Verified Complaint is just a matter of detail. Both forms require extensive information, including the grounds, which is the legal reason for the divorce, as well as relief being sought, such as child custody, child support, division of property, and alimony. However, the Summons and Verified Complaint includes more information about the plaintiff, defendant, and their children.
One original and two duplicate copies of each form are made, and the completed forms are filed in the county clerk’s office of the county where either spouse lives. The clerk’s office assigns the case an Index Number, which the clerk puts on all the forms, along with the filing date.
If a party cannot pay the fee, he or she can file the Poor Person’s Waiver forms, which, with court approval, means the plaintiff does not have to pay the fees.
Serving the Documents
The plaintiff must serve a copy of the summons and complaint within 120 days of the filing date. If the defendant lives in New York, anyone (other than plaintiff) who is a resident of New York State and over 18 years can deliver the divorce papers. Service must be personal, which means personally handing the papers to the defendant. The defendant can be served any day of the week except Sundays. If the defendant lives in another state, the plaintiff follows the rules for service in that state.
Spouses who have children together must also serve a copy of the Child Support Standards Chart with the Summons.
The Plaintiff should also include the Affidavit of Defendant (Form UD-7) and instructions on how to fill it out. This form can be used if the plaintiff agrees to the divorce. He or she can to fill out, sign and send back to within 40 days.
If the defendant will not complete and return the affidavit, then whoever served the divorce papers needs to prepare an Affidavit of Service (Form UD-3), which proves service of process.
If the defendant does not return the affidavit and the spouses married in a religious ceremony, the plaintiff must fill out the Sworn Statement of Removal of Barriers to Remarriage (Form UD-4) and have another party, over the age of 18, send a copy to the defendant by mail.
However, if the defendant disagrees with any part of the action, he or she files a Notice of Appearance and the divorce is no longer uncontested. Contested actions require an attorney.
Disclosing Financial Information
Even though neither spouse must file a financial disclosure statement with the court, the judge makes certain that child support is adequate and division of property is equitable before issuing a judgment. The judge reviews all financial agreements. The court provides a Statement of Net Worth to assist the spouses in determining financial issues. Both spouses complete the Statement of Worth and exchange them in order to come to a fully informed agreement that the judge approves.
The Family Court issues orders pertaining to child custody and support that can then be incorporated, or included, in the final judgment of divorce when the spouses cannot agree on them.
The court may still require a hearing on maintenance, custody, visitation, or distribution of property. If a hearing is required, the court notifies both spouses to appear, even if there are prior court orders or a prior agreement between the spouses.
Uncontested vs. Contested Divorce
New York offers what is called no-fault divorce as well as the traditional fault-based divorce.
The simplest procedure is an uncontested divorce, where both spouses reach an agreement. This starts by preparing a Complaint for Divorce, along with various supporting documents, one of which will be a marital settlement agreement outlining the division of assets and agreement regarding any children. These documents are filed with the court, and copies of them are provided to the responding spouse. The parties attend a court hearing, at which time the judge will make sure that all the paperwork is in order, perhaps ask a few questions, and enter a Judgment of Divorce.
Mediation or collaborative lawyers can be helpful when the spouses agree about getting a divorce, but need help working out financial or child custody issues. Mediation and collaboration makes divorce quicker, less stressful, keeps the parties out of court and, often, keeps costs under control.
Finalizing the Divorce
Once a summons and complaint is served and filed nothing happens unless either party files a Request for Judicial Intervention (RJI), which gets the case before a Judge. Generally after a summons and complaint is served and filed there is a 30-day period before an RJI can be filed.
The New York Courts website has specific instructions for filling out each of the following forms, all of which are required to place the case on the court calendar:
If the defendant did not sign and return the Affidavit of Defendant, then the plaintiff must also file:
If parties have children together, then they also have to file the forms related to child support (Forms UD-8, UD-8a, and UD-8b).
If the case is in a court other than in one of the five New York City Boroughs, then the filer must also file the “Request for Judicial Intervention (Form UD-13).”
The average time to obtain an uncontested divorce in New York State is 10 weeks. An uncontested divorce in New York State can be done by the parties involved without an attorney if the parties can get all of the correct information.
The more complex cases with adversarial parties or attorneys take the longest, and complicated cases can to take over a year from the very beginning to the end.
New York does not automatically give custody of children to any one parent. In deciding custody, the court only considers what is in the best interest of the child. It considers who gave primary care during the marriage, scheduled doctors' appointments, and attended school meetings. Generally, the court allows the non-custodial parent ample visitation with the child and even awards joint custody. Visitation is often only limited in circumstances where there is abuse.
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