You may file for divorce in New York if you meet one of these residency requirements:

1. Either you or your spouse has lived in the state for at least two years immediately leading up to the date you file for divorce;
2. Both you and your spouse live in New York at the time you file for divorce and the cause for the divorce occurred in New York; or
3. Either you or your spouse has lived in New York for at least one year immediately leading up to the date you file for divorce and:
   • your marriage took place in New York;
   • you and your spouse lived in New York during your marriage; or
   • the cause (“grounds”) for the divorce occurred in New York.¹

¹ NY Dom Rel Law § 230

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.

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:

• for a marriage up to and including 15 years, alimony would be paid for a time period that equals15% - 30% of the length of the marraige;
• for a marriage of more than 15 years, up to and including 20 years, alimony would be paid for a time period that equals 30% - 40% of the length of the marraige;
• for a marriage of more than 20 years, alimony would be paid for a time period that equals 35% - 50% of the length of the marraige.¹

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 the NY Courts website.

¹ NY Dom Rel Law § 236(6)(f)

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).¹

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.² 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.³

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.

If you are going to be in court without a lawyer, our Preparing for Court – By Yourself section may be useful to you.¹ See NY Judiciary Law § 35(8)
² NY Dom. Rel. Law § 237(a)
³ NY Dom. Rel. Law § 237(b)

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.

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.

• If your spouse will not complete and return the Affidavit of Defendant, then whoever served him/her with the papers must prepare an Affidavit of Service (Form UD-3), proving that your spouse received copies of the divorce paperwork. If you were married in a religious ceremony, then you must also fill out a copy of the Sworn Statement of Removal of Barriers to Remarriage (Form UD-4) and someone other than you, over the age of 18, must send a copy of it to your spouse either by personal service along with the Summons With Notice or the Summons and Verified Complaint, or by mail. Check with the clerk to see what other forms, if any, also need to be mailed to your spouse.
• If your spouse files a Notice of Appearance disagreeing with anything in the papers, then this is no longer an uncontested divorce. You may want to consult an attorney immediately if this happens.

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.¹

You can find more information about service of process in our Preparing for Court – By Yourself section, in the question called What is service of process and how do I accomplish it?

¹ Much of this information was adapted from the NY Courts website divorce packet. Please read the packet for additional information.

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 when you file 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.¹ Another automatic order says that neither spouse can remove the other spouse or children from any existing medical, hospital and dental insurance coverage.² There are many other automatic orders – to read all of them, please go to our Selected NY Statutes page.

¹ NY Dom Rel § 236(Part B)(2)(b)(1)
² NY Dom Rel § 236(Part B)(2)(b)(4)