What Are The Basics Of Filing For Divorce?

Bringing a marriage to a close is always a stressful experience, even when both parties agree that the relationship has run its course. For those couples who are able to reach an agreement on the terms of their divorce, filing an uncontested divorce action is significantly easier than the drawn-out process of arguing over numerous matters. With a contested divorce, the services of a skilled Manhattan divorce lawyer are essential to a favorable outcome.

What are the basics of filing for divorce?

Understanding the steps of filing for divorce can help you know what to expect as your uncontested divorce moves forward. Keep in mind that if either party does not agree with the terms of the proposed divorce, the matter is considered a contested divorce and becomes far more complicated. 

Make Sure You Qualify

To file an uncontested divorce in the state of New York, either you or your spouse must have lived in the state for a period of at least two years prior to filing. You must also have legal grounds for divorce. Examples of grounds include:

  • Adultery
  • Imprisonment
  • Cruel and inhumane treatment
  • Abandonment

New York also allows for divorce on grounds of an irretrievable breakdown in the relationship, as long as those conditions have persisted for a period of at least six months.

Filing for Divorce

You must open your divorce case by filing a “Summons with Notice” or “Summons and Complaint.” You’ll need to pay the filing fee, currently $210. At that time, your case is given an index number and processed into the system. 

If you’re the spouse filing the divorce you will be referred to as the Plaintiff, and your husband or wife will be the Defendant. If you both have reached an agreement on how to divide assets, you should file a Settlement Agreement at this time.

Serving the Defendant

In divorce cases, Plaintiff is responsible for serving the “Summons with Notice” or the “Summons and Complaint” to Defendant. This requirement ensures that both parties are made aware of the legal proceeding intended to end the marriage. While it seems like a simple formality, this step can become complicated, and failure to serve the other party can prevent your divorce from taking place. 

If for some reason you are unaware of your spouse’s location, you’ll need to contact the Supreme Court Clerk’s Office to determine a means of alternate service.

Serving the Defendant in an Uncontested Divorce

After an index number has been purchased and the “Summons with Notice” or the “Summons and Complaint” have been filed with the County Clerk’s Office the Defendant (the other spouse, husband, or wife) must be told of the case.

If you don’t know where your spouse is, ask the Supreme Court Clerk’s Office for more information about alternative services. Normally, however, you can simply hand the papers to your spouse if the divorce is truly uncontested or have another party hand over the papers if you suspect your spouse might not agree to the terms within. 

It’s important to serve all appropriate paperwork to Defendant. Omitting necessary forms can complicate or delay the process. Some of the papers you may need to include:

  • Copy of Summons with Notice or Summons and Complaint
  • Copy of Notice of Automatic Order
  • Copy of Sworn Statement f Removal of Barriers to Remarriage (if you were married through a religious ceremony)
  • Copy of Notice Concerning Continuation of Health Care Coverage
  • Affidavit of Defendant

It’s important to note that the index file for your case must be included at the top of each of these documents. This ensures all paperwork is easily identified as part of your divorce.

Defendant’s Response

Once your spouse has been served, he or she gets the chance to respond to the divorce filing. The defendant can elect to sign the Affidavit of Defendant that was served, which means they agree to the terms laid out within. 

Your spouse might choose to respond with an Answer, which means they contest one or more matters within the divorce agreement. At this point, the divorce is considered to be contested and can quickly become far more complicated. They might also choose not to respond at all, in which case they are considered to have defaulted, and the Plaintiff can move forward to the next step. 

Calendaring

If Defendant defaults or does not contest the terms of the divorce, the next step is to place the matter on the court’s calendar. Check with your county to determine where to file all of the paperwork and whether you can file immediately. 

At this point, you’ll pay a filing fee of $125. If your divorce is completely uncontested, the judge will rule on the matter and you’ll either come in to pick up your Judgement of Divorce or receive the papers in the mail. The final step is to serve these papers to your spouse and complete an Affidavit of Service.    

If you are considering filing for divorce and are unsure where to begin, reaching out to an experienced Manhattan Divorce Lawyer is a great place to start. While the journey may be challenging, you can rest assured you will be in the best of hands as you navigate the path toward your future. 

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