- How do You Start an Action for Divorce or Separation in New York?
- What is a Summons?
- What is a Complaint?
- What Happens After My Spouse is Served With the Summons?
- Do I Have a Right to see My Spouse's Financial Records?
- How do I Prove My Divorce Case?
- What are the Grounds for a Divorce in New York?
- Am I Required to Reside In New York Before I can Begin My Divorce Action?
- How Long Will it Take to get Divorced in New York?
An action for divorce, separation or annulment is started by filing a Summons or Summons and Complaint in the Supreme Court of the State of New York. Thereafter, the Summons must be served personally on your spouse and an affidavit of personal service must be filed in court within 120 days after the Summons is served.
A Summons is a legal document which gives notice to your spouse (the Defendant) that an action was started.
The Complaint is a legal document in the action for divorce, separation, or annulment. It contains the specific details and reasons for the relief requested in the Summons, including your grounds for divorce, separation or annulment; it also contains other requests such as child custody, visitation, child support and maintenance, equitable distribution of marital property, health insurance, life insurance, payment of legal fees and experts' fees, exclusive possession of the marital residence, orders of protection, etc.
If you start the divorce action by filing and then serving a summons without a complaint, your spouse has twenty days to serve a "notice of appearance" upon you (or your divorce attorney, if represented by an attorney). This means that your spouse appears in the divorce action and you have twenty days to serve your verified complaint upon your spouse.
If you start the divorce action by serving a summons and a verified complaint, your spouse has 20 days to serve his or her answer to your complaint. The Answer may also contain counterclaims against you. You have 20 days to reply to the counterclaims.
In New York, both spouses have the right to complete Financial Disclosure as to the other spouse's income, assets and expenses before the case can proceed to trial or amicable settlement negotiations.
Whatever ground, or reasons you rely on to file for divorce, it will have to be proved. The evidence necessary to prove a certain ground is established by prior cases. If your spouse contests the action for divorce, there must be a trial or hearing at which at least one witness (it may be you) will have to testify about your allegations. If the Supreme Court of the State of New York finds your testimony to be more believable than the testimony of your spouse, you will have succeeded in proving your case and the court will grant you a Judgment of Divorce.
New York has six grounds for divorce. Four of the "grounds" are based on the "fault" of one of the spouses. These are cruel and inhuman treatment, abandonment for one or more years, imprisonment for three or more years, and adultery. The two other grounds enable you to obtain a "no-fault" divorce. The spouse seeking the divorce must substantially comply with the provisions of the separation judgment or separation agreement. These two other grounds are: one year of living apart under a separation judgment granted by a Court, or under a separation agreement signed by the parties.
An action for divorce may be maintained only when any of the following conditions of New York residency apply:
- You and your spouse were married in New York, and either of you is a resident of New York when the divorce action is started and has been a resident of New York for a continuous period of one year immediately before the commencement of the divorce action
- You and your spouse have resided in New York as husband and wife, and either of you is a resident of New York when the divorce action is started and has been a resident of New York for a continuous period of one year immediately preceding the beginning of the divorce action
- The grounds for divorce occurred in New York, and either you or your spouse has been a resident of New York for a continuous period of at least one year immediately before the beginning of the divorce action
- The grounds for divorce occurred in New York, and both you and your spouse are residents of New York at the time of the commencement of the divorce action
- Either you or your spouse has been a resident of New York for a continuous period of at least two years immediately preceding the commencement of the divorce action
A simple uncontested divorce can be processed by the Supreme Court of the State of New York within 60 days. A complex contested divorce action, involving contested custody, support. valuation and property issues can take from one to three years.