Filing For Divorce in New York State

The Marble Team

Filing For Divorce in New York State

Family Law
| 5 min

Nobody plans to file for divorce when they first get married. It’s never your plan to have to figure out how to move on with your life without the person you thought you’d be spending it with. Divorce should always be a last resort, only after trying mediation or couple’s therapy.

In New York, you must have a proven reason for filing for divorce, but if it does come to this unhappy ending, it can be difficult navigating this change in your life, so the last thing you want is to have a long, drawn-out, legal divorce process. Finding a divorce attorney who is ready to represent your best interests and knows the legal manner inside and out can make the entire process much easier. 

The first step once you decide to take the legal steps towards divorce is to file for divorce with the courts. It’s definitely not an easy step, both mentally as well as because of the various criteria you must meet prior to filing for a divorce in New York. 

Filing for divorce and property division in the Supreme Court of New York

Your divorce case will be filed and completed within the Supreme Court. These cases are usually more expensive and take longer to deal with, especially if an agreement/settlement isn’t made outside of court and will need to possibly go to trial. Alternatively, if you have children and are arranging custody, matters relating to this can be carried out in the Family Court.

Don’t get overwhelmed by the requirements, information, and documents to file in the Supreme Court. This is why we are here and our knowledgeable team knows every step and requirement like clockwork while still keeping your best interests in mind. 

Legal requirements for filing for divorce in New York include:

Residency. You must prove that you and/or your spouse have lived within the State of New York for a certain length of time, most typically a year. If you have recently moved to New York on your own after a breakdown of the marriage, you will need to return and file your divorce within the state when you are still considered to be residing. 

Grounds. In the State of New York, you must have a reason for filing for divorce, which is known as grounds for divorce. You must prove one of the following has happened in your marriage to constitute its breakdown:
• Cruel and Inhuman treatment

• Abandonment

• Confinement in prison for 3 or more consecutive years

• Adultery

• Living separate and apart pursuant to a separation judgment or decree

• Living separate and apart pursuant to a separation agreement

• Irretrievable breakdown in the relationship for a period of at least 6 months 

Filing for divorce and property division

What is a separation judgement/decree or separation agreement?

A separation agreement or judgement (also known as a separation decree) are terms used to define a legal separation in the State of New York. A contract is written between both parties highlighting how the spouses plan to live apart. This will contain where each party will live, how children will be cared for/where the children will live, how money and debts will be divided, and essentially how both parties plan to live apart for the rest of their lives.

From there, the agreement is signed by both parties as well as by a notary and then filed with the county clerk. From the day it is filed, the separation agreement must be adhered to for a period of one year before the parties can then use it as grounds for divorce. An agreement becomes a judgement when it is signed by a judge and transitioned into a divorce file. 

Separation agreements are considered legal contracts and come with their own set of requirements and details that must be followed to a tee. During this stressful period for both you and your family, if you chose to create an agreement among yourselves, it’s possible steps can be missed or you may agree to terms under duress, etc. We recommend speaking with an attorney who can help you in this process. 

What is the difference between a contested and uncontested divorce and how does this affect filing requirements?

If you have no children under the age of 21, both you and your spouse agree that you both want to divorce, and you agree to how property and finances will be separated, your divorce is considered uncontested. This makes the process much more manageable and even cheaper for both of you. Even if you only disagree on a couple of things, you can choose to meet with a mediator to help even out these issues so you don’t need to be considered a contested divorce. 

An uncontested divorce can be filed with an uncontested divorce forms package or through A DIY (Do it Yourself) Uncontested Divorce Program. A little more on both of these in a bit.

A contested divorce means that you and your spouse can not agree on one or more major issues within the separation of property. It can also happen when you or your spouse does not want to get divorced or doesn’t agree with the grounds for divorce. In these cases, you will need to file more information so a judge can properly review your case. You will also return to the court multiple times, which will be costly and require a lot of legal work. Having a lawyer in these situations to represent you is highly suggested by most judges as well as by us. 

What happens when children are involved? 

All divorce cases are heard in front of The Supreme Court, however, the Family Court of New York can hear cases that involve custody as well as other cases that involve children, such as abuse and visitation. A spouse can also ask for spousal support from a Family Court lawyer. If there is already a divorce case proceeding with the Supreme Court, these are matters that can be grouped within that case so everything can be kept together. 

A Supreme Court judge will determine custody on a multitude of factors, which will be covered in another article. 

What documents need to be included when filing for divorce?

If you believe your court case will be uncontested, you can review the Uncontested Divorce Forms Packet available from the court. You should review this with a lawyer to ensure accuracy. Required forms can be found here.

If your court case will be contested, the process is a little different, which is why we highly suggest using an attorney. Forms such as a Statement of Net Worth will have to be filled out with high detail and error-free. 

Filing for divorce will be a highly stressful time during your life and we are sorry that you will have to go through it. Having a team of legal experts with you can make the process easier and allow you to gain advice when required as well as focus on what really matters right now, such as your children or job. We hope you gained some valuable insight from this article, but there is still so much involved that we strive to provide throughout our blog and in our consultations.

Image: Freepik, Karlyukav

Dec 30, 2020
The Marble Team