Overview
of the Law
How
to Get an Order Protection
Custody
Information
Divorce
Information
Overview
of Divorce Information:
(Adapted from www.Womenslaw.org)
What
is divorce?
Divorce
is a legal action that ends or "dissolves" a marriage.
Here are the basic steps for getting a divorce:
- First,
you must meet the residency requirements of the state.
- Second,
you must have “grounds” (a legally acceptable reason) to end
your marriage.
- Third,
you file divorce papers and have copies sent to your spouse.
- Fourth,
if your spouse disagrees with anything in the divorce papers,
then he will have the opportunity to file papers telling his
side. This is called “contesting the divorce.” If he contests
it, then you will have a series of court appearances to sort
the issues out. If your spouse does not disagree with anything,
then he should sign the papers and send them back to you.
If your spouse agrees with everything and signs the papers,
this is called an “uncontested divorce.”
- Fifth,
if there is property that you need divided or if you need
financial support from your spouse, then you will have to
work that out either in an out-of-court settlement or in a
series of court hearings. Custody may also be decided as part
of your divorce.
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What
are the grounds for divorce?
"Grounds"
are legally acceptable reasons for a divorce. In New York, there
are divorces after separation, and fault-based divorces.
- Divorce
after separation - In a divorce after separation, you do not
have to have a reason for the divorce. To file for divorce,
you and your husband must either have a separation agreement
or a court ordered-judicial separation. You also must live
separate and apart for one year after the agreement or judicial
order before you can be divorced.
- Fault-based
– With a fault-based divorce, you do not have to be separated
before filing for the divorce. In New York, you can file for
a fault-based divorce for any of these reasons:
- Cruel
and Inhuman Treatment – This includes physical, verbal or
emotional abuse. The judge will require more than that you
simply did not get along with one another. The judge will
be looking for specific instances of cruelty that occurred
in the last five years.
- Abandonment
– To file for divorce based on abandonment, your spouse must
have abandoned you for a period of one or more years. Specific
examples of abandonment by your spouse include a physical
move from the home, sexual withdrawal, or locking you out
of the home.
- Three
Consecutive Years Imprisonment - A judge may grant you a divorce
if your spouse has been in jail for three or more years in
a row. Once your spouse has been in jail for three years in
a row, you can file for divorce:
- while
your spouse is still in jail
- up
to five years after s/he is released.
- Adultery
– You must be able to show that your spouse committed adultery
during the marriage. This is usually hard to prove in court,
since you need evidence from a third party - someone besides
you or your spouse.
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What
might I get in a divorce?
You
may wish to ask for all or some of the things listed below.
A lawyer can help you figure out what you should ask for in
your particular situation.
1.
Your share of the marital property
“Property”
includes money, your home, car, personal items, and anything
else that you own. To divide property, a judge will first
determine what is “separate property” and what is “marital
property.” Whatever is determined to be your “separate property,”
you will be able to keep. Whatever is determined to be “marital
property” will be divided between the two spouses.
Separate
property (or “nonmarital property”) is usually anything that
you brought into the marriage and kept separate during the
marriage. Also, some gifts that you receive during your marriage
may be considered separate property, such as an inheritance.
You will be allowed to keep anything that is your separate
property.
Marital
property is anything earned or acquired during your marriage.
This includes wages, home, furniture, etc. You and your spouse
will each get some of the marital property, but you will not
necessarily each get half. In New York, a judge will divide
your marital property in a way that s/he thinks is fair. This
is called “equitable distribution.” In New York, a judge will
consider many factors when dividing your property, including:
your
income and property at the time of marriage, and at the time
of filing for divorce how many years you have been married
your ages and health whether the parent who has custody of
the children needs the home the loss of inheritance and pension
rights once the divorce is final any award of financial support
as part of your separation or divorce your direct or indirect
contributions to property earned or acquired during the marriage
(including services as a spouse, parent, wage earner, homemaker
or any support to the other’s career) your probable future
financial circumstances
the tax consequences to each of you whether either of you
have spent money wastefully or destroyed property whether
either of you were abusive might be taken into consideration,
depending on the judge
2. Debts
In
a marriage, if one spouse creates a debt, such as on a credit
card that you both opened together, then the other spouse
is also responsible for paying it. So, if your spouse runs
up a credit card, then the credit card company can come after
you to pay it. Once you are separated, it is best to close
any joint credit card accounts you have, so that if your spouse
doesn’t pay off his debt or creates more debt, you will not
be responsible.
In
dividing property, a judge will also decide who is responsible
to pay off the debts.
3.
Custody
Both
parents have an equal right to ask for custody or visitation
in a divorce proceeding. When determining custody and visitation,
the judge will consider what is in the best interest of the
children.
Please
see our Custody Info page for more information.
4.
Maintenance (financial support)
“Maintenance”
is money that one spouse must pay to help support the other
spouse after a divorce. A judge will not award maintenance
in all cases. You are less likely to be awarded maintenance
if your marriage was short, you are relatively young and healthy,
or if your spouse doesn’t have enough money or property to
help support you. A judge will usually award maintenance for
a set period of time to give the person receiving it a chance
to become self-sufficient.
5.
Child support
Child
support refers to the money a parent must pay to the children
after a divorce. The parent who lives with the children has
the right to ask for child support from the other parent,
as long as the children are under 18. The child’s need and
the parent’s ability to pay determine how much support the
court will order.
6.
Removal of the abuser from the marital home
If
your spouse abused you during your marriage, you can ask the
court to remove him from your home. The court will look for
abuse that amounts to more than arguing, but does not require
a history of domestic violence.
7.
Order of Protection
You
may ask for an Order of Protection if your spouse has been
abusive. Please see our How to Get an Order of Protection
page for more information.
8.
Other Relief
You
can also ask the court for other forms of relief such as the
legal use of your pre-marriage name, health insurance coverage
for yourself and your children, and the naming of your children
as beneficiaries of your ex-husband’s life insurance plan.
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Can
I get a divorce if my husband and I still live together?
It
is possible, if you are filing for a fault-based divorce. 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.
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Will
my children's last name change after I get a divorce?
Divorce
proceedings alone will not change your children’s last name.
If you want to change their last name, you will have to file
for their name change separately in court. Generally, if you
want to change your children’s name, the other parent must be
notified and has the right to object.
It
is possible, however, for you to have your name changed back
to your pre-marriage name through divorce proceedings.
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What
is an uncontested divorce?
An
uncontested divorce is one where you do not expect your spouse
to disagree with any aspect of the divorce or you do not think
he will come to court for your hearing. 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 only have to file documents
with the court. You and your spouse do not have to make an appearance
in court.
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How
much does an uncontested divorce cost?
If
you represent yourself and prepare the divorce packet yourself,
you only have to pay court fees. As of late 2004, the fees will
add up to approximately $335.
If
you cannot afford the fees, you may file a Poor Person’s Waiver.
If you qualify, you will not have to pay the fees.
You
may also represent yourself but choose to pay an online divorce
service (such as www.nydivorceonline.com)(1) for the preparation
of your divorce packet.
A
simple uncontested divorce prepared by a lawyer may cost anywhere
from $250 to $2500, in addition to court fees, depending on
whether an agreement has to be prepared.
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What
is a contested divorce?
A
contested divorce is when your spouse disagrees with anything
in the case, including the divorce itself, the property division,
child custody, or financial support. A contested divorce is
more complicated than an uncontested divorce. It is always best
to have an attorney assist you with a contested divorce.
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How
much does a contested divorce cost?
Attorneys
usually charge an hourly rate, ranging from $175 to $450 or
possibly even more, depending on experience. They usually require
an advance retainer, which is an initial deposit against which
you are billed.
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What
are the steps to obtain a divorce?
Step
1: Grounds
You must first have grounds (a legally acceptable reason)
to ask for a divorce. If you are filing for a divorce after
separation, you must write a separation agreement. You both
must sign the agreement in front of a notary and then file
it with the County Clerk 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. You may want
to consult a lawyer before signing your separation agreement.
If
you are filing for a fault-based divorce, then you do not
need to write a separation agreement. You will need to file
the appropriate forms explaining the grounds for divorce with
the County Clerk.
Please
review the section: What are the grounds for divorce?
Step
2: Fill out the forms
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 Courts page here:
www.nycourts.gov/litigants/divorce/index.shtml.
Note
that for all these forms 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. You
will first have to fill out the forms “Summons with Notice”,
or a “Summons and Verified Complaint”.
The
Summons is the form that begins your divorce action in Supreme
Court and allows you to name yourself as “plaintiff” and your
spouse as the “defendant.” In the Complaint, you will state
one or more grounds for divorce and ask for the specific things
you need (property, custody, child support, etc.).
The
choice between using a Summons with Notice and a Summons and
Complaint is just a matter of how much detail you want to
bring before the court. The Complaint will include more information.
Once
you have filled the forms out, you will need to make two additional
copies.
Step
3: File your Summons with the court
Bring your completed forms to the County Clerk's office to
file them. You can file in the county where you or your spouse
lives.
The
Clerk’s office will assign an index number to your case which
you or the Clerk will need to put on your forms. You will
also have to put the date you are filing.
You
will have to pay $210 for the index number. However, if you
cannot pay this fee, tell the Clerk that you need to fill
out the forms for a “Poor Person’s Waiver.” If you qualify,
you will not have to pay the fees.
You
will find a list of County Courts on our Courthouse Locations
& Info page.
Step
4: Service of Process
Your spouse must be ‘served’ with a copy of the Summons and
the Complaint, if you filed one. You must do this within 120
days. This means that a person other than you, who is a NYS
resident, age 18 or older, must personally give him 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.
If
you have children with your spouse, then you must also serve
a copy of the Child Support Standards Chart on the Defendant.
Ask the Clerk of Court for a copy of this chart.
You
should also include the Affidavit of Defendant, which your
spouse will have to sign and send back to you if he agrees
to the divorce. You may fill out the form for him and just
let him sign it, or you may want to include instructions on
how to fill it out.
Step
5: Receive Affidavit of Defendant
If
your spouse agrees to the divorce, he will need to sign the
Affidavit of Defendant and send it back to you. He has 40
days to do this.
If
your spouse will not complete and return the Affidavit of
Defendant , then whoever served him with the papers must prepare
an Affidavit of Service (Form UD-3), proving that your spouse
received copies of the Summons. 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 by mail.
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 if this happens.
Step
6: Place your divorce case on the court calendar
If your spouse signed the Affidavit of Defendant (Form UD-7),
then you may place your case on the court calendar at anytime.
If your spouse did not sign the forms, you must wait 40 days
after serving him with the papers.
If there are children of the marriage, you will also have
to file the forms related to child support (Forms UD-8, UD-8a,
and UD-8b). If you want child support to be paid to someone
other than the Child Support Collection Unit, you must also
file the New York State Case Registry Form.
If
you are filing in a court outside of New York City, then you
must also file Request for Judicial Intervention.
Unless
you are also filing a Poor Person’s Waiver, then you will
be charged additional filing fees.
The
County Clerk will then give all these papers to the judge.
If the papers are approved, the judge will sign The Judgment
of Divorce.
Note:
If you are asking for maintenance, custody, visitation, or distribution
of property, the judge may require a hearing unless you have
either a written agreement or prior court order. If you are
asking for the home you shared during your marriage, you must
assert that your spouse is not living there; otherwise a hearing
may be ordered.
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How
do I contest a divorce I do not want?
If
you are served with divorce papers but do not want to get a
divorce, you can contest the divorce by hiring a lawyer or by
contacting your spouse's lawyer within twenty days and filing
a Notice of Appearance. The Notice of Appearance tells the court
that you plan to participate in the divorce proceedings.
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What
if my spouse contests the divorce?
If
you filed the divorce papers and your spouse wants to contest
it, then he will have to file a Notice of Appearance.
After
the Notice of Appearance, there will be additional forms and
documents to file, and you may have to go to court several times.
You
may finalize your divorce through an out-of-court settlement
or by a trial in court. It may take a year or more to get to
a trial. In a trial, a judge will decide if the grounds for
divorce and the things each spouse asked for are appropriate.
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Do
I need a lawyer?
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 can file without the help
of a lawyer following the instructions above.
If
you are asking for custody, child support, financial support,
or a share of marital property, you may want to hire a lawyer
because there may be things you have not thought of that you
can ask for. A lawyer can also help you protect money or property
that is yours.
If
you cannot get a lawyer, you may be able to deal with custody
and child support in Family Court before you file for divorce.
This may make the divorce uncontested and easier to handle.
It
is important for you to find out if your husband has a pension,
retirement account, insurance or other significant property
before you decide whether to file your own divorce. If you do
not ask for such things in the divorce, you will give them up
forever .
The
court will not give you a lawyer in divorce cases. If you need
a lawyer, you will have to hire one or qualify for help at a
legal services or legal aid organization. Please see our NY
links and Resources page for a list of legal links.
