As a divorce attorney/mediator I get lots of questions about divorce. If you are thinking of going through a divorce, here is some information that will help you.
Who can file for divorce in the State of New York?
Any legally married person who meets the state’s residency requirements and has valid grounds for divorce, can commence an action for divorce in New York State.
What are New York’s residency requirements/How do I meet New York’s residency requirements?
You will meet New York’s residency requirements if:
Either you or your spouse has been a resident of New York State for a continuous period of at least two years prior to the start of the action; or
Either you or your spouse has been a resident of New York State for a continuous period of at least one year prior to the start of an action, and is a resident of the state at the time the action is commenced, and you either 1) were married in New York State or 2) lived together as husband and wife in New York State; or
Either you or your spouse has been a resident of New York State for a continuous period of at least one year prior to the start of an action and the grounds for divorce occurred in New York State; or
The grounds for divorce occurred in New York State and both you and your spouse are New York residents at the time the action is started.
How is a divorce action started?
A divorce action is to be commenced in New York State Supreme Court, and is properly brought within the county where either you or your spouse reside.
The action is commenced with the purchase of an index number (for which the fee is currently $210.00) and the filing of either a 1) summons with Notice, or 2) Summons and Verified Complaint (together with required notices pertaining to health care insurance and certain automatic orders) with the County Clerk’s office.
The spouse who starts the action (who is designated the “plaintiff” in the action) must then arrange for the other spouse (who is designated as the “defendant” in the action) to be personally served with the divorce papers which were filed with the Court within 120 days of the start of the action.
For this reason, it is advisable that the plaintiff determine the defendant’s location for purposes of service prior to starting an action. Once a matrimonial action is commenced, certain automatic orders immediately become effective which prohibit both parties from transferring assets, incurring unreasonable debts, or making changes to insurance coverage while the divorce case is pending.
How is the defendant served?
The plaintiff cannot serve the defendant himself or herself. He or she must arrange for another person, who is over the age of 18 and unrelated to the case, to make personal service on the defendant. Unless otherwise directed by the Court, personal service requires personal/hand delivery.
If the defendant resides out of state, it is preferable to have service made by a New York resident, although this might be costly. If a someone who is not a New York State resident serves the defendant outside of the state, that person must generally be a qualified attorney, solicitor or the equivalent in that other state or nation, or otherwise authorized to serve papers pursuant to the laws of that state or nation. After making service, the server of the papers must complete a notarized affidavit which the plaintiff must file with the Court as proof of service.
Once service has been properly made upon the defendant, the Court may exercise jurisdiction
(or authority) over the defendant.
What if I am served with divorce papers?
Depending on how you were served, you may have only 20 days to respond. If you do not respond, your spouse could get a divorce and might receive what they are asking for in the court papers. By doing nothing, you will only be divorced faster. You need to contact an attorney to respond to the Summons.
What are grounds?
A ground is an acceptable legal reason for divorce. In New York State, there are six fault grounds and 1 “no fault” ground which may form the basis for divorce under New York State law.
They are:
Irretrievable Breakdown in Relationship (No-Fault)
Either party must state under oath that the marriage has broken down irretrievably for a period of at least six months. A divorce can be granted on this ground only if all other issues in the action, both economic and non-economic, have either been resolved.
Cruel and Inhuman Treatment:
The spouse who files for divorce under this ground must show that the other spouse has been physically, verbally or emotionally abusive to him or her within the immediately past five years, such that it would be unsafe and improper for the plaintiff to continue living with him or her. Proof of specific acts of cruelty are required; a general inability to get along will not rise to the level of cruelty.
Abandonment:
In order to file for divorce under abandonment, the spouse who files for divorce must be able to show that his or her spouse willingly and voluntarily abandoned him or her for a period of at least one or more years without any apparent intent to return. A mutually agreed upon separation does not qualify as abandonment.
Constructive Abandonment:
This ground can be used where the plaintiff’s spouse has has refused to engage in sexual intercourse with the plaintiff for a period of one year or more, without justification or any preventative physical condition. This ground might also be appropriate where the plaintiff’s spouse has excluded the plaintiff from the marital home for a year or more without just cause. This ground is not appropriate where exclusion from the marital home is based on an order or protection or other court order.
Three Consecutive Years Imprisonment:
This ground will apply if the plaintiff’s spouse has been incarcerated for a period of three or more consecutive years during the marriage. Use of this ground requires that the spouse’s incarceration occurred after the marriage; a plaintiff cannot use this ground if the marriage occurred after his or her spouse’s incarceration.
Adultery:
For this ground, the plaintiff must be able to show that the other spouse voluntarily engaged in adultery (a sexual relationship with another person) during the marriage. This ground is not frequently used due to the difficulty of obtaining acceptable proof (which must come from someone other than the plaintiff or his or her spouse).
Separation Agreement:
If the parties have signed a separation agreement and live separately pursuant to the agreement for a year this can also be grounds for a divorce.
If you would like to learn more about the divorce process or have questions, call me.
Divorce is complex but it doesn’t need to be intimidating. I can help you understand and navigate the process.
Having served NYC for over 35 years as a divorce attorney and mediator, I can tell you a divorce doesn’t have to be daunting!.
All our highly informative 1 Hour Consultations are FREE!
All consultations and mediation sessions are conveniently conducted virtually to reduce risk and maintain safety.
I look forward to speaking with you.
Stay healthy and safe!
Warm regards,
Lois
Call New York Divorce Lawyer, Lois Brenner now to book your free consultation. 212.734.1551