HOW DO YOU START AN ACTION FOR DIVORCE OR SEPARATION IN NEW YORK?
Filing a summons at the County Clerk's office starts an action for divorce. The summons must then 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. If you start the divorce action by filing and then serving a summons without a complaint, your spouse has 20 days to serve a "notice of appearance" upon you. If you start the divorce action by serving a summons and a verified complaint, your spouse has 20 days to serve his/her answer to your complaint. The answer may also contain counterclaims against you. You have 20 days to reply to the counterclaims.
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WHAT ARE THE GROUNDS FOR A DIVORCE IN NEW YORK?
New York has six grounds for divorce. Four are based on the "fault" of one of the spouses:
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cruel and inhuman treatment
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abandonment for one or more years
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imprisonment for three or more years
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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.
AM I REQUIRED TO RESIDE IN NEW YORK BEFORE I CAN BEGIN MY DIVORCE ACTION?
An action for divorce may be sought only when any of the following conditions of New York residency apply:
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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.
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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.
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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.
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The grounds for the 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.
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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.
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HOW LONG WILL IT TAKE TO GET DIVORCED IN NEW YORK?
A simple uncontested divorce can be processed by the Supreme Court within a matter of weeks. A complex contested divorce action, involving contested custody, support, valuation, and property issues may take years.
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WHAT ARE THE LAWS IN NEW YORK REGARDING PROPERTY DISTRIBUTION?
In New York State, property is distributed through "equitable distribution." Property is first classified as either "separate" or "marital." Generally, property acquired prior to the marriage is separate property and property acquired during the marriage is marital property. There are exceptions to these general rules. New York's equitable distribution law is more complicated than most states and it is imperative that you hire an attorney who understands the vast exceptions.
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WHAT ARE THE LAWS IN NEW YORK REGARDING SPOUSAL SUPPORT?
According to New York law, either spouse may be awarded maintenance, without regard to marital fault, based on consideration of the following factors:
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income and property of the spouses, including any marital property divided as a result of the dissolution of marriage
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any transfer of property made in anticipation of divorce
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duration of the marriage
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wasteful dissipation of marital property
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contribution of each spouse to the marriage and the career of the other spouse, including services rendered in homemaking, childcare, education, and career-building of the other spouse.
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tax consequences to each spouse
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any custodial and child support responsibilities
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ability of the spouse seeking support to become self-supporting and the time and training necessary
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any reduced lifetime earning capacity as the result of having foregone or delayed education, training, employment, or career opportunities during the marriage
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whether the spouse from whom maintenance is sought has sufficient property and income to provide maintenance for the other spouse
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age and health of both spouses
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present and future earning capacities of both spouses
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any other factors the court deems just and equitable
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HOW MUCH WILL A DIVORCE COST?
The cost of the divorce is directly related to the complexity of the case and to the extent to which the issues are contested. An uncontested divorce will cost much less than a contested divorce. An attorney will generally require the payment of a retainer at the outset of the representation. In the majority of cases, you can expect to be billed on an hourly basis for work performed in the course of the representation. If the initial retainer is insufficient to cover all the legal fees and cost, you will receive periodic invoices, which you are expected to pay promptly. In addition to paying your attorney, you will be responsible to pay court-filling fees and other costs incurred in the course of the divorce, such as appraisal or expert fees.
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WHAT IS EMANCIPATION OF A CHILD AND WHEN DOES IT OCCUR?
Emancipation is a term used in relation to child support. If a child is deemed emancipated, the child support obligation ceases, by order of the court. Under New York Law, a child is emancipated if one of the following exists:
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A child attains age twenty-one (21) years.
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A child marries, whether or not such marriage may be void, voidable or may subsequently terminate by death, divorce, annulment, or dissolution, or in any other manner.
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A child enters the armed forces of the United States or any other country or political entity.
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A child attains the age of eighteen (18) years and becomes employed full-time; except that full-time summer employment undertaken by a child while such child is still engaged as a full-time college student shall not terminate the child support obligations established in this agreement.
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A child leaves the home to avoid following reasonable parental/household rules.
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CAN I GET AN ANNULMENT INSTEAD OF A DIVORCE?
Annulments are handled very similarly to a divorce with regard to the filing of pleadings and forms, however, the grounds are stricter. To get an annulment, you must prove that the marriage is voidable, so as to request the Court to nullify the marriage. The following are grounds to prove a marriage is voidable.
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One or both of the parties has a former marriage that was not dissolved through a divorce or annulment.
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One or both of the parties are under the age of consent (18).
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One or both of the parties was mentally retarded or mentally ill (if a party is incapable of consenting because they are unable to understand).
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One of the parties was physically unable to enter the marriage state.
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Where consent of the marriage was obtained by force, duress or fraud.
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Where one of the parties has been incurable insane for five years.
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CAN MY SPOUSE DIVORCE ME WITHOUT MY CONSENT?
Yes, if the Plaintiff complaining spouse, proves the grounds for divorce, and the grounds are determined by the Judge to be sufficient under the law.
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HOW CAN I MAKE THE OTHER PARENT GIVE UP HIS/HER PARENTAL RIGHTS? CAN I GIVE UP (SURRENDER) MY PARENTAL RIGHTS?
New York State allows for parents who have remarried to file an adoption, asking the court to allow their new spouse to adopt his or her child(ren). The other parent may voluntarily sign a sworn affidavit if they desire to surrender their parental rights. If that parent will not sign such a document, the adoption becomes contested and must go before a judge to render a decision. The reasons for an adoption by another person (who requests to take over the rights of another parent) include the following: the other parent has been absent from the life of the child for at least 6 months (abandonment), a parent has been adjudicated as having permanently neglected/abused his or her child(ren), or other extreme circumstances that would be contrary to the child's best interest.
