The United States Census Bureau reported that within the past decade, New York recorded an average rate of 8% to 9% in terms of divorces per 1,000 people. The highest was 9.1% in 2021, which dropped to 8.8% in 2022. Compared to the rest of the country, the state had the third-lowest number of divorces and the sixth-lowest marriage rate in 2022. In the past few years, around 13% of women and 10% to 11% of men in New York were divorced, with women filing for divorce more often.
In spite of the state’s low divorce rate, it still happens that marriages get dissolved for both personal and legal reasons, and the parties concerned may find themselves caught off guard by the complexity of the requirements and guidelines involved. As such, this article will help separating couples understand the divorce process in New York so that they can determine which legal options will suit them best if they wish to put an end to their marriage.
Divorce vs. Annulment vs. Legal Separation in New York
New York couples should note that divorce, annulment, and legal separation all follow different legal guidelines, even if the three seem to be similar. A divorce results in the end of a couple’s marriage contract, made official by a judge who will sign the judgment of divorce. Meanwhile, annulment involves not only the dissolution of a marriage but also its removal from any official records. In short, it shows as if no marriage between the partners ever happened or existed.
A marriage in New York is voidable if it is considered prohibited. This applies if either party was underage or did not have the proper mental capacity to consent to the marriage, or if the consent of their parents or guardians had not been obtained. People in the state can only marry if they are at least 18 years old, which is the official age of consent under New York law. However, if an underage married couple continues to live together after they reach the age of consent, their marriage can no longer qualify for annulment.
Other grounds for annulment in New York include any of the following:
Either spouse could not engage in sexual intercourse due to physical disabilities.
Either spouse was made to agree to the marriage through fraud, coercion, or threats.
Either spouse had an incurable mental illness for a minimum of five years.
Either spouse is still legally married to another person when they marry their new spouse.
The relationship between the couple is incestuous.
On the other hand, legal separation involves a scenario wherein both parties in a marriage live apart under a separation agreement. Both parties are free to pursue their personal choices and can work on a decision regarding the custody of their children and the division of their property. However, the couple’s marriage is not legally dissolved, meaning both parties are still married to each other and cannot remarry as a result.
Couples can choose legal separation as an alternative to divorce for personal, religious, or moral reasons or if they wish to see whether reconciliation is still possible in the future. Some also pick this option to maintain their health insurance policies and tax benefits.
Is New York a No-Fault State When It Comes to Divorce?
New York allows couples to file fault-based and no-fault divorces. Specifically, a person can pursue the dissolution of their marriage under fault-based rules if any of the following grounds occur:
Their spouse committed adultery.
Their spouse was imprisoned for three or more years.
Their spouse abandoned them for at least one year.
Their spouse showed cruel or inhuman treatment through physical or mental abuse.
Meanwhile, a no-fault divorce in the state is allowed if there is an “irretrievable breakdown” of the couple’s marriage within a minimum period of six months, even if both parties are still living together. Additionally, a couple may get divorced under no-fault grounds if they have been living apart for at least one year under a separation agreement or a separation decree issued by the court.
It should be noted that if a no-fault divorce is filed, the court cannot issue a judgment that will finalize the marriage’s dissolution until any and all economic issues in the case have been addressed and resolved. These can include:
Payments or waiver of spousal support.
Payments of child support.
Payments of fees related to legal counsel and expert testimonies.
Custody and visitation rights.
Division and distribution of marital property.
New York also allows a person to file a special petition to the state’s Supreme Court to dissolve their marriage if their spouse has been missing or absent for at least five years. Once issued, the dissolution becomes final even if the absent or missing spouse reappears. In order to dissolve a marriage on such grounds, the petitioner must prove that:
Their spouse has been absent for a minimum of five years with no proof that they are alive.
They believe their spouse to be dead.
They made efforts to find out whether their spouse was still alive, but they could not find any evidence to prove so.
How to File for Divorce in New York
Prior to filing for divorce, a person in New York must fulfill any of the state’s residency requirements, which are as follows:
They or their spouse must have been resident of the state for an uninterrupted minimum period of two years before the complaint was filed.
They or their spouse must be a resident of the state at the time the complaint was filed and for an uninterrupted minimum period of one year before the complaint’s filing. The grounds for the complaint must also have happened within the state.
The marriage must have taken place in New York, or the two must have lived together in the state as a married couple.
In addition to the residency requirement, a petitioner must provide the specific grounds for the divorce complaint, as mentioned above.
Filing the Divorce Complaint
If a person meets any of the aforementioned requirements, they can submit their complaint to the local County Clerk’s Office. The required documents for the process include a Summons with Notice or a Summons and Verified Complaint, along with a settlement agreement if both parties have one.
If the couple mutually agrees on the divorce and both sides have already reached a decision regarding their property and finances, the petitioner can file for an uncontested divorce on the New York State Unified Court System website’s Uncontested Divorce Program. This can also be done if the couple’s marriage has been over for a minimum of six months and the spouses have no children under the age of 21.
On the other hand, if the couple agrees to an uncontested divorce while having children below 21, they can refer to the Uncontested Divorce Packet to find the documents they will use. However, this packet cannot be used if the divorce is contested.
Serving the Divorce Paperwork
After filing a divorce complaint, the petitioner must then serve their spouse with the divorce papers within 120 days from the date when the complaint was filed. In addition, a Request for Judicial Intervention must be filed within 45 days from the time the divorce summons were served; however, this is not required if both parties file a Notice of No Necessity.
In case the petitioner cannot serve the divorce paperwork on their own or if their spouse is absent from the state, they can ask for permission from the court to publish a notice in a local newspaper. If the spouse contests the divorce, the petitioner must have the paperwork served by any adult who is a resident of the state and is not directly involved with the divorce.
Depending on the service of the paperwork, the petitioner’s spouse will have up to 20 days to respond to the complaint or 30 days if they are not within the state. If the spouse has no issues or disputes, they must submit an Affidavit of Defendant that they have signed before a notary public. On the other hand, if they wish to contest the divorce at this point, they can file an Answer or a Notice of Appearance. If the spouse does not respond at all, the court will declare that they have defaulted.
Calendaring and Post-Service Processes
If the petitioner receives an Affidavit of Defendant from their spouse or if the latter has defaulted, the former must file the remaining paperwork with the court. Again, they can refer to the New York Courts’ Uncontested Divorce Program or the Uncontested Divorce Packet (if they have children aged below 21) for information on what documents to file.
In case the divorce is contested, there are also additional documents involved, including a Statement of Net Worth that must be signed in front of a notary public. In this statement, both parties must enumerate their overall income, assets, debts, and property in detail. Failure to do so can result in fines and even jail time.
Once all the required documents are prepared, they must be submitted to the County Clerk’s Office or the Supreme Court Clerk’s Office.
Finalizing the Divorce
If there are no more problems regarding the submitted paperwork and all economic issues have been resolved, the judge will issue a decision that will finalize the divorce, and the court will notify the petitioner accordingly. However, a contested divorce will likely take much longer due to the additional hearings and requirements involved and the issues that will be potentially disputed by both sides.
To work through a contested divorce, a couple can participate in out-of-court alternative dispute resolution processes, such as divorce mediation or collaborative family law. Both parties can work with a mediator of their choosing or ask the court for referrals.
How Property Is Divided in a New York Divorce
New York follows the rule of equitable distribution in divorce cases. This means a couple’s marital property is divided in a fair manner based on each spouse’s contribution during the marriage and their long-term needs after the divorce. This contrasts with the community property rule, where marital property is divided 50/50 between parties regardless of what they own or need. Under equitable distribution, the judge presiding over the case will generally take the following factors into account:
Each spouse’s total income and property when they married and when they filed for divorce.
The need for a spouse to use or live in the family home if they gain custody of the children.
Each spouse’s potential financial circumstances for the future.
Any spousal maintenance award.
Generally, the couple can enter into a prenuptial or settlement agreement on how their overall property, assets, and debts will be divided in a divorce. The judge will decide whether a settlement agreement is fair for both parties, and if a prenuptial agreement was signed, the court would follow what the couple has agreed upon. If no prior agreement was reached and the couple disagreed on how to divide their property during the divorce, the judge would be the one to divide on their behalf.
New York Divorce FAQs
Legal Resources for Getting a Divorce in New York
NYSBA has several public services and resources that state residents can use for their respective concerns and cases. The organization’s Lawyer Referral Service is open to individuals and families who are looking for an attorney for potential legal representation, and they can pay a fee of $35 for a 30-minute consultation. New Yorkers who are looking for mediation-related options can also access the organization’s directory to look for a specific mediator who can assist them. In addition, the website has a LEGALease Online section where visitors can download digital pamphlets that cover various topics, including divorce, separation, and marriage equality.
Law Help NY is a website that provides free legal information for New Yorkers who have concerns involving civil law matters, including divorce, child custody, domestic violence, and guardianship. It refers low-income individuals and families to legal service organizations and projects that they can contact for assistance in their respective cases. The website can also help people look for free legal representation throughout the state based on their location and specific issues. Furthermore, it has a number of hotlines for those involved in incidents related to divorce, child maltreatment, and spousal abuse.
LAS is a social justice law firm that is devoted to assisting low-income New Yorkers in civil law cases. Its website has various articles that help educate people on their rights and potential options in family law cases, including divorce, custody disputes, orders of protection, and domestic violence. Additionally, it has a directory of contact information that people from specific boroughs can use if they require assistance in divorce and family court proceedings.
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