Obtaining a Divorce in the state of New York
In the State of New York, only the New York State Supreme Court may issue a Judgment of Divorce. Although the Family Court has the authority to impose financial obligations upon spouses and parents independent of a divorce action, it cannot issue a divorce. Even if spouses agree to resolve everything amicably and never enter a courtroom, it is still necessary to submit papers to the Supreme Court of the State of New York to obtain an actual Judgment of Divorce. Here are some very important other facts to know about divorce in New York:
- To obtain a divorce in New York, it is necessary to satisfy certain residency requirements set forth in Domestic Relations Law 171.
- Either: (1) the parties were married in NY and either party has been a resident for at least one year prior to the filing the divorce action; (2)
- The parties resided in NY as spouses and either party is a resident of NY for at least a year at the time of filing for the divorce.
- the cause of action occurred in NY and either party has been a resident for one year at the time of filing for divorce;
- the cause of action occurred in NY and both parties are residents at the time of filing for divorce;
- either party has been a resident of NY for at least two years at the time of filing for divorce.
Prior to a change in the law, it was necessary to prove “grounds” to obtain a divorce. These grounds include the traditionally understood “fault” based circumstances such as adultery, abandonment and cruel and inhuman treatment. The person wanting the divorce had the burden to prove that grounds existed to warrant the Court granting the divorce.
Since the beginning of divorce law, a spouse could try to deny the other party getting a divorce. Sometimes it is because he or she did not want the marriage to end. Other times, it was to gain leverage over economic issues or child related issues (including child support). For instance, a husband would agree to give his wife a divorce only if she would agree to waive certain economic rights.
In 2010, the legislature changed the law to include a new cause of action based upon “irretrievable breakdown of the marriage for a period in excess of six months.”
Basically, either party has the right to seek a divorce and the other party really does not have any defense. It is often times referred to as a “no fault divorce.” Even though there is no defense, the Court will still not issue a final Judgment of Divorce until all of the financial and child based issues are resolved and concluded.
To obtain a divorce, it is necessary to file a Summons with Notice or a Summons and Complaint with the County Clerk.
Presently the cost is $210. The Summons must be served on the other party. However, it is the filing of the Summons that stops the accumulation of marital property and marital debts. Pursuant to statute, the other party does not need to be served for 120 days.
Often times, one side will file and not tell the other side to determine if marital issues may be resolved or for a number of other reasons. But, if service of the Summons is made within 120 days, it is retroactively valid to the date it was actually filed.
Technically, all income earned after the filing of the summons, and any debts incurred after that debt, belong the individual. Before the filing, all income and liabilities are “marital” regardless of whose name it is in. Many people believe that simply because a house or a bank account is in one party’s name that it is not a marital asset. New York is not a “title” State. It is entirely irrelevant if it is one name or both.
What matters is when it was obtained and whether it is subject to a narrow list of factors that would make it separate property such as inheritance or a gift from a third party to only one party of the marriage and not the other.
During a divorce, all economic issues and child-based issues are addressed. Law requires Child support until a child reaches 21. However, custody issues such as visitation and decision making for children terminates at 18. Once a child reaches 18, the Court cannot address anything other than child support.
More than 90% of all divorces are resolved by agreement and not by the Court after trial. A settlement agreement is a contract that will be enforced by the Court the very same way it would enforce its own Court Order. In fact, because it was a voluntary agreement, the law often makes it more difficult to get out of an agreed upon obligation then if it were imposed by the Court. Either way, once all of the issues have been resolved, it is necessary to file simple paperwork with the Court to actually obtain the Judgment of Divorce.