Know the Laws: New York
UPDATED April 4, 2016
To learn more about making divorce easier for your children, you can visit The New York State Parent Education and Awareness Program's Handbook. You can also check out the NY Courts website for more divorce information, including an informational video, divorce forms and a glossary of legal terms.
Divorce is a legal action that ends or "dissolves" a marriage. Here are the basic steps for getting a divorce:
You may file for divorce in New York if you meet one of these residency requirements:
* NY Dom Rel Law § 230
"Grounds" are legally acceptable reasons for a divorce. In New York, there is a "no-fault" divorce ground and fault-based divorce grounds.
No-fault ground: You can get a "no-fault" divorce if, according to either party, the marriage has "broken down irretrievably" for a period of at least six months (in other states, the common term used is "irreconcilable differences.") You do not have to be separated for 6 months, you just have to allege that the marriage has been completely broken down for at least the past 6 months. Note: A judgment of divorce will not be granted under this ground until the following issues are resolved by the parties, or determined by the court and incorporated into the judgment of divorce:
Fault-based grounds: In New York, you can file for a fault-based divorce for any of these reasons:
Divorce after a legal separation agreement - A divorce after a separation agreement is another basis (ground) for a divorce. You do not have to have one of the fault-based grounds listed above. To file for divorce, you and your spouse must either have filed a valid separation agreement (which we recommend having an attorney write up for you since there are many specific requirements that it must meet to be valid) or one spouse can file for a court ordered-judicial separation. You also must live separate and apart for one year after the agreement or judicial order before you can be divorced.*** To understand what needs to be in a separation agreement in order for it to be considered a ground for divorce, it is best to consult a lawyer.
* NY Dom Rel Law §170(7)
** NY Dom Rel Law §170(1)-(4)
*** NY Dom Rel Law §170(5),(6)
Yes, if you are filing for a fault-based divorce or under the "no-fault" option. However, if you plan on filing a separation agreement, this requires that the parties live separate and apart for one year after entering into the agreement. However, you should keep in mind that in many cases, starting a divorce action while living with your spouse may not only be emotionally difficult, but it may also be dangerous for you and your children if there has been domestic violence in the home.
Once you are in the process of a divorce, support is referred to as maintenance or alimony. If you are getting separated or divorced, the supreme court can award you temporary maintenance (which lasts while the divorce case is going on) and/or post-divorce maintenance, which applies once the divorce is finalized. For temporary maintenance, there are specific guidelines and a mathematical formula that determines how much you can get. The New York Courts website has an online calculator to help you figure out what you may be entitled to in temporary maintenance.
For divorces that were filed on or after 1/25/16, there are also specific guidelines and a mathematical formula that determines how much you can get in post-divorce maintenance. The New York Courts website has an online calculator to help you figure out what you may be entitled to in post-divorce maintenance.
However, for both temporary and post-divorce maintenance, the judge can vary from the formulate if s/he determines that the guideline amount of maintenance is unjust or inappropriate.*
Note: Even prior to filing for a divorce, you may be able to file for spousal support in family court while still married to your spouse.** To read the relevant law, go to our NY Statutes page and read Family Court Act § 412.
* NY Dom Rel Law §§ 236; 236(5-a)(h); 236 (6)(c),(e)
** NY Fam Court Act § 412
When deciding how many years a spouse will be ordered to pay post-divorce maintenance, the judge may -- but doesn't have to -- use the following guidelines:
In addition to having the option of using these guidelines, a judge must consider 15 factors when determining the amount of time that post-divorce maintenance will be paid, such as the age/health of the parties, and the reduced/lost earning capacity of one spouse as a result of having given up or delayed education, training, employment or career opportunities during the marriage. To read the complete list of the factors that a judge must consider, go to page 8 of the NY Courts worksheet.
* NY Dom Rel Law § 236(6)(f)
The court will determine how much money the other parent will pay to support your child. The court almost always uses set guidelines in a child support obligation worksheet to determine how much support you will receive. If you would like to see all of the factors that go into determining support, you can visit the NY State Child Support website. The guidelines the court uses involve a complex formula, but basically the court looks at both parents’ incomes, your child’s needs and the custody arrangements. Generally, whether you are the custodial parent or whether you share joint custody with the other parent will affect the amount of support you may get. To get a rough idea of how much support you may receive, you can visit AllLaw.com's NY child support calculator. (Note: WomensLaw is not affiliated with this website.)
To modify a child support order after it is established, either parent would have to show that there has been a substantial change in circumstances. Note: The paying parent's incarceration could be a reason for modification unless it is due to nonpayment of child support or a criminal offense against you or the subject child.* An order can also be modified without a substantial change in circumstances if, since the order was entered or last modified:
However, even if the court modifies the child support order, that will not reduce or erase any child support arrears (overdue payments) which have accumulated before the parent filed the modification petition. The unpaid payments will still have to be paid.*** To read more about child support in New York State, you may want to check out this manual prepared by Her Justice and the Brooklyn Bar Association Volunteer Lawyers Project. (Note: WomensLaw is not affiliated with those organizations.)
* NY Fam Ct Act § 451(2)(a); NY Dom Rel Law § 236(2)(i)
** NY Fam Ct Act § 451(2)(b); NY Dom Rel Law § 236(2)(ii)
*** NY Dom Rel Law § 236(2)(iii)
It is better to have a lawyer if at all possible. If you are filing for an uncontested divorce and you believe your spouse will not disagree with anything, then you may want to file without the help of a lawyer by using the uncontested divorce do-it-yourself program available on the NY State Courts website.
If you are asking for custody, child support, spousal support, or to divide up marital property or marital debt, you may want to hire a lawyer because these issues get quite complicated. Also, it is important for you to find out if your spouse has a pension, retirement account, insurance or other significant property before you decide whether to file for divorce. If you do not ask for such things in the divorce, you will give them up forever. Note: If the only "contested" issues involve custody or visitation of the children and there are no other financial issues or division of property, you might want to deal with custody and child support in family court before you file for divorce. Those family court orders could then be incorporated into (become part of) the divorce. This may make the divorce uncontested and easier to handle.
If you are low-income, you can get an attorney appointed for you in the divorce but only to handle the custody and visitation portion of the divorce action, not the division of property or support portions. (You could also get an attorney appointed to handle an order of protection if you file for an order of protection during the divorce).*
If you do not qualify for a free, court-appointed lawyer, or if you need a lawyer to handle issues that the court-appointed lawyer won't handle, there may be help according to the law. The judge can order the spouse who has more money to pay the other spouse's attorney's fees and the fees and expenses of experts (such as a forensic psychologist) if this is necessary for the less-monied spouse to be adequately represented in the divorce. The judge will assume that the richer spouse should pay the poorer spouse's attorney fees although the richer spouse can try to change the judge's mind and offer evidence to show why this should not be done. The money would be paid during the divorce (not at the end) to your attorney directly.** This law also applies to a court case you may have to later bring to enforce any part of the divorce or custody order that the other spouse is violating.***
Please see our NY Finding a Lawyer page for free legal services and a paid legal referral service. If you have to hire a lawyer, go to our How do I find and choose a lawyer? page.
* See NY Judiciary Law § 35(8)
** NY Dom. Rel. Law § 237(a)
*** NY Dom. Rel. Law § 237(b)
A contested divorce is when your spouse disagrees with anything in the case, including the divorce itself, the property division, child custody, or financial support. A contested divorce is more complicated than an uncontested divorce. It is always best to have an attorney assist you with a contested divorce.
An uncontested divorce is one where you do not expect your spouse to disagree with any aspect of the divorce or when your spouse does not respond to the court papers served on him/her. In cases of uncontested divorce, you may represent yourself, but a lawyer might still be helpful, especially if your spouse has one.
To get an uncontested divorce, you generally have to file documents with the court. You and your spouse generally do not have to make an appearance in court.
The NY Courts website lists a schedule of fees for initial divorce filings in on page 5 of their divorce packet. For an uncontested divorce, the inital court filings may represent the majority of the cost. However, for contested divorces, where motions are commonly filed, experts may be ordered to do evaluations, and a lawyer is usually required, the costs can increase greatly.
If you cannot afford the filing fees, you may file an application to proceed as a poor person. Here, for example, is an affidavit that would be filed when asking to have the fees waived (in other words, to "proceed as a poor person.") The clerk's office can tell you exactly what forms to file. If you qualify, you will not have to pay the fees.
Attorneys usually charge an hourly rate, ranging from $175 to $450 or possibly even more, depending on experience. They usually require an advance retainer, which is an initial deposit against which you are billed. You might be able to get an attorney for no cost through our NY Finding a Lawyer page or, if you are low-income, you may be able to get an attorney appointed for you by the court to handle custody and visitation matters.*
However, if you cannot afford to pay for an attorney, there is a law that may help if your spouse earns/has more money than you do. The law says that the judge can order the spouse who has more money to pay the lower-income spouse's attorney's fees and the fees and expenses of experts (such as a forensic psychologist) if this is necessary for you to be adequately represented in the divorce. The judge will assume that the richer spouse should pay the poorer spouse's attorney fees although the richer spouse can try to change the judge's mind and offer evidence to show why this should not be done. The money would be paid during the divorce (not at the end) to your attorney directly.** This law also applies to a court case you may have to later bring to enforce any part of the divorce or custody order that the other spouse is violating.***
* NY Judiciary Law § 35(8)
** NY Dom. Rel. Law § 237(a)
*** NY Dom. Rel. Law § 237(b)
Step 1: Grounds
You must first have grounds (a legally acceptable reason) to ask for a divorce. For more information, please review the section: What are the grounds for divorce?
If you are filing for a divorce after a separation agreement, you must both have a properly written agreement that has to have very specific legal language in it to be valid. We strongly suggest that you have a lawyer draw up the agreement so that it meets the legal requirements. You both must sign the agreement in front of a notary and at some point, file it in the proper court in the county where you live. Then, you must live apart, according to the terms of your agreement, for at least one year before filing for divorce.
If you are filing for a fault-based divorce or a "no-fault" divorce action, then you do not need to write a separation agreement. Again, we suggest having an attorney assist you with filing for your divorce.
Step 2: Fill out and file the proper forms and pay the fee
For an uncontested divorce, you will need the Uniform Uncontested Divorce Packet. There are links to these forms on our Download Court Forms page. There are also more instructions on the NY State Courts website. Many of the forms can be very complicated, however, and we suggest having the help of an attorney. If you are filling out forms on your own, you can ask the court to keep your address confidential, if you have been abused by your spouse. Be sure to ask the clerk for help with this and do not put your address on any of these forms. If you expect or know that the divorce is going to be contested, an attorney is especially important to make sure that your legal rights are protected.
You will also have to pay certain fees to file for the divorce. If you cannot afford it, you can ask the clerk for an application to proceed as a poor person. If you qualify, you may not have to pay the fees.
Step 3: Service of Process
Your spouse must be personally served with a copy of the all necessary papers - be sure to clarify with the clerk what exactly needs to be served upon your spouse. This means that a person other than you, who is a New York resident, age 18 or older, must personally give your spouse the papers. The server may be a friend, family member, or professional process server. Summons may be served Mondays through Saturdays, but there is no service of process on Sundays.
If your spouse lives in another state, you will need to follow the rules of that state. Call the local sheriff to find out how to have the papers served in that state.
Step 4: In an uncontested divorce, possibly receive the Affidavit of Defendant (Form UD-7)
If you file for divorce and your spouse agrees to the divorce, s/he will need to sign the Affidavit of Defendant (Form UD-7) and send it back to you. S/he has 40 days to do this. If it is not done within 40 days, you can file for the divorce based on his/her default.
Step 5: Place your divorce case on the court calendar, possibly appear in court multiple times, and get the judgment for divorce
The forms that you need to file to get your divorce on the court's calendar and in front of a judge will be different based on if your spouse signed the Affidavit of Defendant (Form UD-7) or a notice of appearance. There are multiple forms that need to be filed and again, we suggest having the help of any attorney to make sure everything is done properly. The time it takes to get the judgment of divorce will be much different if you are filing an uncontested or contested divorce -- for contested divorces, there will multiple court appearances, hearings, and possibly a trial -- this could all take many months or even years. For uncontested divorces, you can be granted a judgment of divorce without appearing in court but there could still be a significant wait depending on how busy the court's calendar is.
Note: If you are served with divorce papers by your spouse but you do not agree with the terms that your spouse is asking for in the divorce, you can contest the divorce by filing a Notice of Appearance in court within 20 days of being served with the divorce papers or by hiring a lawyer to do so for you. The Notice of Appearance tells the court that you plan to participate in the divorce proceedings.*
* Much of this information was adapted from the NY Courts website divorce packet. Please read the packet for additional information.
If you are served with divorce papers but do not agree with any of the terms that your spouse is asking for in the divorce, you have a limited amount of time to file your own papers in response to the divorce petition. If you are served with a "summons with notice," you can answer ("appear") in the case by filing and serving upon the other party a notice of appearance and demand for complaint. If you are served with a summons and verified complaint, you may answer ("appear") in the case by filing and serving a verified answer and counter-claim, in which you can ask for whatever relief you want in the divorce. For specific advice on how to serve a notice of appearance and/or on how to fill out and serve a verified answer and counterclaim, especially if you are not sure which one to file, please consult with a lawyer. There are many steps to proper service, including knowing how to serve the papers to the opposing party, how to fill out and file an affidavit of service and what papers need to be filed with the court. It is generally best to get legal advice to be sure that everything is done properly.
As the divorce progresses, there will be a series of court dates where you will have to appear in court in order to deal with the issues within the divorce. We strongly recommend getting a lawyer to represent you since contested divorces can be quite complicated and complex. Go to our NY Finding a Lawyer page for legal referrals.
Divorce proceedings alone will not change your children’s last name. If you want to change their last name, you will have to file for their name change separately in court. Generally, if you want to change your children’s name, the other parent must be notified and has the right to object. For information in New York State about name changes, you can check out the Legal Assistance of Western New York website.
It is possible, however, for you to have your name changed back to your pre-marriage name through divorce proceedings.
Legally, no. When you serve your spouse with the divorce summons, you will also have to include a copy of certain "automatic orders," which are binding upon the defendant immediately upon serving him/her with them. (The orders are also binding on you as well upon filing of the summons.) The automatic orders remain in effect during the entire divorce proceeding unless terminated or changed by the judge. The automatic orders include, for example, that neither spouse can hide, transfer or get rid of any property, money, or other assets that are either individual or joint property without the other spouse's consent. The only exception to this is if those types of actions are taken "in the usual course of business," for usual household expenses, or for reasonable attorney's fees in connection with the divorce.* Another automatic order says that neither spouse can remove the other spouse or children from any existing medical, hospital and dental insurance coverage.** There are many other automatic orders -- to read all of them, please go to our NY Statutes page.
* NY Dom Rel § 236(Part B)(2)(b)(1)
** NY Dom Rel § 236(Part B)(2)(b)(4)