A Guide to Divorce in New York
Every divorce comes with its own unique set of circumstances, but the vast majority of divorces in New York must follow the same rules and procedures no matter what issues surround a couple’s marriage and impending divorce.
This guide will help you understand what many of those basic rules and procedures are so that you can equip yourself with important information that you will need to help you get through the divorce process.
Depending on your situation, you should also learn as much as you can through other sources such as a family law attorney, your county courthouse, friends and relatives who have gone through a divorce, and online resources to help you deal with the financial, social and emotional challenges you will face along the way.
Here are some of the more important things you will need to know as you start working through the divorce process in New York.
- The differences between divorce, annulment and separation
- What are the grounds for divorce in New York?
- Deciding what kind of divorce you will go through
- The process of filing for divorce
- How to complete proof of service
- Filing for a divorce online
- Filing for divorce in New York without using a lawyer
- How much does divorce cost in New York?
- How long does it take to get a divorce?
- Should I retain the services of a Certified Divorce Financial Analyst?
- Bifurcation of Marital Status is Not Common in New York
- Can I cancel, refuse, contest, stop or reverse a divorce in New York?
- What is a divorce decree?
- What is a proof of divorce?
- Changing Your Name
- Bonus: Recommended Resources for a Better Divorce
The differences between divorce, annulment and separation
Married couples can end their marriages three ways in New York. Each of these has their own special requirements and rules, and a basic understanding of these options is a good place for you to start.
Legal Separation
When a marriage is no longer working and one spouse moves out of the home, couples may consider themselves separated. While this is physically the case, they are not legally separated, and there is a big difference between the two.
In New York, a legal separation must formally be granted by the courts or it can take place through a written agreement that is agreed upon by both the husband and wife. As part of this process, many issues that would be handled in a divorce are also addressed, including things such as a division of assets, child custody, support, and so forth. The couple remains legally married, but in a less formal and more distant way.
In many cases, legal separation provides a much-needed time out that allows two people to try and resolve their issues in a less combative environment. Stepping away can often times bring added perspective about what a couple will lose in a marriage and possibly give them time to heal from the issues that caused their marriage to come under stress.
Spouses may also choose legal separation for religious reasons. Some religions do not look favorably upon divorce and staying married though legally separated puts less pressure on a couple who might otherwise be in conflict with their church and religious beliefs.
There are financial benefits as well, such as being able to keep health insurance, or by continuing to file as a married couple on tax returns. Also, when a couple is legally separated, each person is responsible for their own financial decisions and is not responsible for those that the other person makes.
If a person is not a U.S. citizen, and they get a divorce, they run the risk of deportation. But with a legal separation, a noncitizen can still stay in the country even if they don’t live with their spouse.
Annulment
Annulments mean that a marriage is considered null and void, as if it never happened. They are granted in New York as long based on five possible grounds which include:
- One or both spouses were under 18 years old at the time of the marriage
- The marriage took place under fraud, duress or coercion.
- Mental incapacity which means that one or both spouses were not able to consent to the marriage
- Either spouse is not capable of having sex
- Either spouse had an incurable mental illness for at least five years
Divorce
Divorce is a permanent and legal end to a marriage. All ties are severed, assets are divided, custody and alimony issues are resolved, and each spouse goes their separate way after a final decree is issued. New York is a combination no-fault and at-fault state and one spouse or the other can file for divorce either way
What are the grounds for divorce in New York?
Since the law was changed in 2010, New York is now considered a no-fault divorce state, although couples can still get divorce either for a no-fault reason or for at-fault reasons. To get a no-fault divorce, one spouse or the other only needs to claim that there is an irretrievable breakdown in the marriage.
Sometimes, one person will attempt to get a divorce using at-fault reasons in an attempt to get more favorable settlement terms. An at-fault divorce may be obtained due to cruel and inhuman treatment, abandonment for one year or more, adultery, or one spouse being incarcerated for three or more years following the marriage.
What are your options for divorce?
It is in your best interests to fully understand all of your options when you are thinking about getting a divorce. The path that you ultimately take will be determined by the relationship you have with your spouse.
Deciding whether to pursue an uncontested divorce in New York or attempting to negotiate a settlement through a cooperative effort of some sort could save you a lot time and money, making it easier for you to transition to life as a single person.
You see, there are only two ways that you reach a final resolution:
- You and your spouse agree
- A judge decides
That’s it. Those are the only two ways to get a divorce in New York.
The type of divorce sets the frameworks for how you get to a final resolution. The process you and your spouse choose sets the tone and shapes the outcome of your divorce.
Before we get into the details, there’s one thing I want you to keep in mind:
One type of divorce is not “better” than another. Divorce is not one size fits all.
Okay, here are the types of divorce:
Do-It-Yourself Divorce: What I like to call the kitchen table divorce. This one is pretty straight forward. You don’t hire any professionals and attempt to resolve all your differences with your spouse. The biggest downside is you don’t know what you don’t know. I’d steer clear of this approach unless you don’t have kids or any money.
Online Divorce: A far superior choice to DIY divorce. Navigating the divorce process and legal procedures can be a minefield. A good online divorce platform removes the guesswork. Through guided interviews, you’ll complete the forms while getting educated on the key legal issues in the process. This can be a great option if you have a relatively straightforward situation and you’re on the same page with your spouse.
Litigation: The default option and also the most expensive. If you and your spouse can’t agree on one of the other options, then you’re headed for litigation. Litigation is an attorney-driven process. While the majority of cases settle before going to trial, that doesn’t mean litigation won’t wreak havoc on you and your kids.
Sometimes it’s the only viable option, however. If your spouse has a high-conflict personality (narcissist, borderline, etc.) or there is domestic violence, litigation might be your only option. It’s also the right choice if your primary objective is to punish your spouse. As tempting as that might be, I encourage you to think about the big picture.
Mediation: With mediation, you and your spouse retain a neutral professional (typically an attorney) to help facilitate agreement. The mediator will help you brainstorm options, understand each other’s perspectives, and make compromises to reach a resolution that you and your spouse can both live with.
Collaborative Divorce: Contrary to popular belief, this doesn’t just mean that you and your spouse are going to work out your divorce “collaboratively.” There’s much more to it. Collaborative divorce is a structured process that takes a team approach. Divorce is much more than a legal process. It’s about money, kids, and emotions.
That’s why a Collaborative team includes collaborative lawyers, a divorce coach, and a neutral financial specialist. Unlike any other process, everyone commits not to go to court. The idea is that this removes the threat of litigation which fosters creative solutions and interest-based negotiation. It’s far and away the most supportive type of divorce.
What is the process of filing for divorce in New York?
There are many kinds of divorce in New York, But the basic process is pretty much the same no matter type of divorce you choose.
Gather important information.
To give yourself the best chance at achieving the best possible outcome, you need to be organized and proactive when it comes to pulling together the information you will need.
By doing so, you can ensure your rights are protected while also saving time, money and anxiety for the next steps in your divorce.
Before you jump in to collecting financial information, take the following steps:
- Open a new checking and savings account in your name alone.
- Open a credit card in your name alone.
- Order a free credit report.
- Make a list of all the assets and liabilities that you’re aware of. Include any memberships, reward points, and other perks that may be considered as assets.
Okay, now it’s time to start gathering your information. Here’s a short-list of what you need:
- Tax returns (including W-2’s, K-1’s, and 1099’s) for the last 5 years
- Pay stubs for the last 3 months
- Bank statements
- Credit card statements
- Retirement account statements
- Pension plan statements
- Grant notice for stock options, RSUs, etc.
- Investment account statements
- Life insurance policies
- Mortgage statements
- Real estate appraisals
- Deeds to real estate
- Car registration
- Kelley Blue Book printouts (“private party value”)
- Car loan statements
- Social security benefit statement
Complete the initial paperwork.
After you decide what kind of divorce you will pursue, you will need to fill out several forms and submit them to start your divorce. If you are working with an attorney, they will guide you through this process. Although it will cost you more when you use an attorney, you will save time and stress in working with a professional who understands the system and who will ensure that your paperwork is filled out correctly.
If you decide to file on your own, you will need to complete all the necessary forms on your own. If you are the one initiating the divorce process, you will be known as the petitioner. If your spouse is the one who files the initial papers, then you will be known as the respondent.
The New York Courts website has specific instructions for filling out each of the following forms, all of which are required to place your case on the court calendar:
- Summons with Notice or Summons and Complaint
- Affirmation of Regularity (Form UD-5, which requests that your case be put on the calendar)
- Affidavit of Plaintiff (Form UD-6)
- three copies of the Note of Issue (Form UD-9)
- Findings of Fact/Conclusions of Law (Form UD-10)
- Judgment of Divorce (Form UD-11)
- Part 130 Certification (Form UD-12)
- Affidavit of Defendant (Form UD-7, if your spouse signed and returned it to you)
- Certificate of Dissolution of Marriage Postcard, and USC 111 – Divorce and Child Support Summary Form.
If your spouse did not sign and return the affidavit of defendant, then you must also file and Affidavit of Service (Form UD-3) and Sworn Statement of Barriers to Remarriage (Form UD-4).
If you and your spouse have children together, then you also have to file the forms related to child support (Forms UD-8, UD-8a, and UD-8b).
If you are filing in a court other than in one of the five New York City Boroughs, then you must also file the “Request for Judicial Intervention (Form UD-13).”
In addition to completing these forms, some local county courthouses also have additional forms that they may require to be completed.
File your forms.
If you are working with an attorney, they will make sure all the forms are correct and will file them at the county clerk’s office, either where you or your spouse live.
You must then serve your spouse with copies of the divorce papers within 120 days of the date that you filed.
Completing proof of service in New York
Once your forms are filed with the court in New York, you must also serve your spouse with a copy of the forms as well. The only way to serve your spouse is by having someone present them with the paperwork in person. Forms cannot be mailed or served by publication which can be the case in some other states.
You must serve your spouse within 120 days of the date you filed your paperwork with the courts. If your spouse is a New York resident, any person who is 18 or older who is also a resident of New York can serve your spouse. Your spouse can be served Monday through Saturday but may not be served on Sunday.
If your spouse agrees to the divorce, they will sign and return an affidavit of defendant form within 40 days. If they do not agree and will not return the affidavit, then the server must prepare and file an Affidavit of Service Form UD-3 stating that the spouse received copies of the divorce paperwork. The spouse may file a Notice of Appearance which means the divorce is not uncontested and will result in several other possible options for resolution, up to and including a trial in front of a judge.
If your spouse signed the affidavit of defendant, then you can place your case on the court calendar at any time. If your spouse did not sign the form, then you have to wait 40 days after serving them with the papers.
Can you file for divorce online in New York?
The New York court system does not provide any mechanisms to file a divorce online. However, there are several services and private attorneys who can do the bulk of the paperwork needed for divorce through electronic means.
In an uncontested divorce, it is possible to retain an attorney or a service who will assist you in completing all the necessary forms by trading emails or entering basic information online. The attorney will then prepare the forms in their office and return them to you for review, either by email, regular mail, or through an actual visit to the attorney’s office.
While there are benefits to getting the divorce process started this way, one of the drawbacks is that it could take some time to go back and forth between you and your attorney before the forms are ready to be submitted.
Regardless of how the forms are completed, you will need to print your forms out and then file your documents with the court.
In addition to private attorneys, there are several online services you can access. A quick online search should produce several possibilities that will closely match the type of services you require.
Check out our favorite: 3 Step Divorce >>
Filing for divorce in New York without using a lawyer
You can file for divorce in New York without using the services of a lawyer. This works best in an uncontested divorce when all terms have been agreed upon.
The New York State Unified Court System actually has an Uncontested Divorce Program that spouses can use to streamline and expedite the process. It can be accessed in both people are over 18 years old, the couple has no children under 21 years old, the marriage has been over for at least six months and cannot be saved, and all marital property issues have been resolved.
To access the Uncontested Divorce Program, go here.
How much will it cost?
The cost of a divorce in New York will vary depending on whether or not the divorce is contested or uncontested. At a minimum, the New York State Court filing fee is $335 which includes $210 for an Index Number and $125 for a Note of Issue and Request for Judicial Intervention.
If you can’t afford to pay fees associated with filing for a divorce, you can request a Poor Person waiver and if granted, you will not be required to pay any filing fees.
If there are any unresolved issues regarding your divorce, you can expect to pay an Attorney Legal Fee that will range from $200 to $500 per hour depending on how complex your divorce is and how many hours it will take to resolve those issues. In addition to hourly fees, there will also be Court Filing Fees that will need to be paid when an attorney files divorce documents. You will also need to pay some sort of a retainer up front to start the process.
Fully contested divorces can run into the tens of thousands of dollars depending on how contentious the divorce is, what kind of assets are involved, and how much disagreement there is with child custody and support issues.
How long does it take to get a divorce in New York?
After papers are filed, there is no formal waiting period for divorce in New York. Individual courts in each county will have varying backlogs, but generally once the forms are filed, it may take as little as four to six weeks for a judge to review the paperwork, especially in an uncontested divorce. Complex divorces and those requiring trials or hearing could take considerably longer.
Although there is no waiting period, there is a residency requirement for getting a divorce in New York. For divorce purposes according to New York state law, a couple must meet one of five criteria:
- The parties were married in New York, and either party lived in New York for one year prior to filing.
- The parties resided in New York as husband and wife, and either party lived in New York for one year or more prior to filing.
- The cause of action occurred in New York, and either party lived in New York for one year or more prior to filing.
- The cause of action occurred in New York, and both parties live in New York at the time of filing.
- Either party has lived in New York for two years or more prior to filing.
Should I consider using a certified divorce financial analyst?
If you are going through a financially complicated divorce, you may need someone who can assist you with an accurate and objective analysis of the financial and tax implications of your decisions.
This will help you make the right decisions now when it comes to reaching a settlement with your spouse. It’s important to get this right from the start – you won’t get a second chance.
While some people with simple situations may only need a family law attorney to help them with this process, many others will benefit from working with a Certified Divorce Financial Analyst (CDFA), and preferably someone who is also a Certified Financial Planner (CFP).
Important Reading: What is a Certified Divorce Financial Analyst? (and why you need one).
Bifurcation of marital status is not common in New York
Bifurcation means that both parties in a divorce can legally declared as a single person while the other issues in their divorce are still being worked out. It does not affect things such as child custody, visitation, child support, alimony or other contentious issues that may have stalled or become major sticking points that are keeping the divorce from being finalized.
Bifurcation of marital status is generally not granted in New York except for compelling reasons. Part of the reason bifurcation is frowned upon is that it can result in two trials instead of one and it also removes any sense of urgency in resolving economic issues because incentives for settlements are removed.
Can I cancel, refuse, contest, stop or reverse a divorce in New York?
You cannot force someone to stay married in New York. However, if you reconcile with your spouse and you both want to stop a divorce from going forward, if the judgment has not already been filed, then you may mutually decide to discontinue the divorce. Generally, the spouse who originally filed the divorce papers with the court must file a motion for those papers to be withdrawn if it is early in the process.
However, if the papers have already been served on the spouse and they have served a response, then both parties must agree to a stipulation that both have signed and presented to the court.
What is a divorce decree?
A divorce decree is the court’s final order that terminates a marriage. It provides a summary of the rights and responsibilities of each party, including financial responsibilities and a division of assets. it also covers child custody, visitation, alimony, child support and other similar issues.
Once the divorce decree is issued, parties are legally free to marry another person. The divorce decree is a legally binding document, and if either party does not meet the requirements and obligations set forth in the decree, the other party can take legal action to correct any deficiencies.
What is a divorce certificate?
After a final divorce decree is granted, a divorce certificate will be filed with the New York State Department of Health. As opposed to a decree which goes into details about the terms of a divorce, a certificate only includes brief and general information such as the names and dates of the divorce. A divorce certificate can provide proof of divorce for many legal purposes.
Only divorced spouses can request a copy of a divorce certificate in New York, or to a third party only with a court order. Requests for copies can be made by phone, online or by mail. Processing times vary depending on the ordering method you choose.
Changing Your Name
When preparing your divorce forms, you will be presented either an option to either restore your former name or request a court order for changing names.
Name changes are granted as part of your divorce. You may either receive a separate court order making your name change official, or have your name change recorded on the final divorce decree. Both of these documents are accepted with all US organizations and agencies as evidence of your name change.
We recommend starting by updating your name with the Social Security Administration. Once you’ve done that, you can go on to change names everywhere else.
We understand that it takes a lot of time to contact each company and figure out what to send where. That’s why we recommend using an Easy Name Change kit to mitigate the 10+ hours of research and paperwork that follows.
Still unsure? Read: 5 Things I Wish I Knew Before Changing my Last Name
Recommended Divorce Resources
There are a ton of divorce resources that make huge claims. We’ve tested a bunch of them. The majority fall short.
A few stand above the rest.
These are the tools and resources we’re excited to share with you because we know they can help you have a better divorce.
If you’re looking for recommendations in any of the following areas, we’ve got you covered:
- Online divorce
- QDRO preparation to divide retirement plans and pensions
- Masterclass on ninja tricks to negotiating with a narcissist
- Co-parenting apps
- Personal finance and budgeting apps
- Best place to sell your engagement ring
- And a whole lot more
You can check them out here >>
