Once the decision to end your marriage has been made, it is prudent to get started on the legalities of ending the marriage as soon as possible to ensure that your rights are protected during the divorce. Learn more about New York divorce process in this presentation.

1. THE NEW YORK
DIVORCE PROCESS
A BASIC OVERVIEW
Once the Decision to End Your Marriage Has Been Made,
It Is Prudent to Get Started on the Legalities of Ending
the Marriage as Soon as Possible to Ensure that
Your Rights Are Protected During the Divorce

2. The New York Divorce Process – A Basic Overview www.simgil.com 2
Making the decision to end a marriage is generally not easy. Once the decision
has been made, however, it is prudent to get started on the legalities of ending the
marriage as soon as possible to ensure that your rights are protected during the
divorce. The amount of time it takes to complete the divorce process in New York
can vary from a few short months to years, depending on the issues involved in
the divorce and on how adversarial the parties to the divorce are. Only an
experienced New York divorce attorney can provide you with specific advice and
guidance; however, the following provides a basic overview of a typical divorce
process in New York.
RESIDENCY – WHO CAN FILE FOR DIVORCE IN NEW YORK?
Before filing for divorce in New York you must be sure that you meet the
residency requirements. In order to file for divorce in the State of New York one

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of the following requirements must be satisfied:
1. You or your spouse must have been living in New York State for a
continuous period of at least two years immediately before the date you
start your divorce action; OR
2. You or your spouse must have been living in New York State for a
continuous period of at least one year immediately before the date you start
your divorce action and your grounds for divorce must have happened in
New York State; OR
3. You and your spouse must be residents of New York State (no matter how
long) on the date you start your divorce action, and your grounds for
divorce must have happened in New York State.
4. You or your spouse must have been living in New York State on the date
you start your divorce action and for a continuous period of at least one
year immediately before the date you start the divorce action AND one of
the following is true:
a) Your marriage ceremony was performed in New York State OR
b) You lived in New York State with your spouse as married persons
GROUNDS – WHAT GROUNDS CAN BE USED TO FILE?
Traditionally, a petitioner was required to provide a reason, or “grounds”, for a
divorce or the divorce would not be granted. Times have changed though, and

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although the law is sometimes slow to catch up with changing social norms, the
law does now allow a petitioner to obtain a “no-fault” divorce in New York. The
traditional “fault” options, however, remain available to a petitioner. Therefore,
when you petition for divorce in New York you will need to choose one of the
following grounds:
Irretrievable breakdown in relationship for a period at least six months --
this is what is commonly referred to as a “no-fault” divorce
Cruel and inhuman treatment
Abandonment
Imprisonment
Adultery
Living separate and apart pursuant to a separation judgment or decree
Living separate and apart pursuant to a separation agreement
Keep in mind that you will need to prove whatever grounds you allege. In other
words, you cannot simply petition for a divorce based on cruel and inhuman
treatment without providing the court with evidence of same. As such, choosing
anything but “Irretrievable breakdown” as the grounds for your divorce tends to
lengthen the time required to complete the divorce process.

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THE COMPLAINT AND ANSWER
To begin the divorce process the Plaintiff (you if you are the one seeking the
divorce) must file a Summons and Notice or Summons and Verified Complaint.
One simply puts the Defendant on notice that a divorce process is forthcoming
while the other notifies the Defendant and provides a copy of the allegations for
the divorce. If the Defendant is served with a Notice and Summons a response
known as a “Notice and Appearance” must be filed with the court within 20 days
letting the court know that the Defendant is participating in the case. The
Plaintiff then has 20 days to serve the Defendant with the actual Complaint. If the
Complaint if served with the original Notice the Defendant has 20 days to file a
formal written answer with the court.
The Complaint is the legal document that sets forth the basic information needed
for the court to claim jurisdiction, the grounds for the divorce and any
corresponding allegations, and asks the court for the relief sought by the Plaintiff
(custody, child support, asset division etc.). The Answer filed by the Defendant
will agree with, deny, or claim a lack of information sufficient to answer all of the
allegations in the Complaint.
If the Defendant fails to file an Answer after being properly served you can ask
the court for a default judgment. Although you will be able to get divorced with a
default judgment, some issues may not be fully resolved because the court lacks
the jurisdiction to resolve them if the Defendant does not appear.

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UNCONTESTED DIVORCE
After all of the initial documents have been filed with the court your divorcee can
proceed in one of two directions. If you and your spouse are able to agree on all
of the issues in the
divorce you may be able
to take the uncontested
route. Typically, the
parties to a divorce in
New York must wait 40
days before the case can
be placed on the court’s
calendar; however, if your
spouse waives this
requirement and you have reached a full and complete settlement you may
request a court date immediately. On your court date the judge will review your
settlement agreement and all ancillary forms and sign the decree if everything is
in order.
It cannot be stressed enough that you and your spouse will need to agree on every
aspect of the divorce for you to be able to take the uncontested route. Typically,
only couples who have no minor children and few assets/debts use the
uncontested divorce option.
CONTESTED DIVORCE
If there are any issues on which you and your spouse do not agree your divorce
will proceed as a contested divorce. The next step in a contested divorce is the

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discovery process. Discovery requires you to divulge information relevant to the
divorce to your spouse and vice versa. This information may be requested
through legal filings such as a “Request for Production of Documents”,
“Interrogatories”, or through a deposition. A deposition is typically taken at a
lawyer’s office with a court reporter present who will transcribe the deposition.
The person being deposed is placed under oath, just as will occur at trial, and
must swear to tell the
truth. Questions are then
asked and answered in an
attempt to illicit
information relevant to
the divorce proceedings.
Although every divorce is
unique, most contested
divorces are contested
because the parties are
unable to agree on one of two issues – money or children. The amount of money
involved is not important. Couples with extremely valuable assets are sometimes
able to reach a settlement agreement rapidly that divides all assets and debts
while couples with few assets can argue for months over those assets and debts. If
the court is forced to divide assets and debts the court will look for an “equitable
distribution” in New York. Keep in mind this does not necessarily mean the court
will divide assets in half. Instead, the court will try and determine what is fair
with regard to the division of assets.
If the parties both want custody of the minor children of the marriage it can
significantly lengthen the time it takes to finalize the divorce. Home studies will

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be ordered and mountains of evidence will ultimately be gathered by both sides
in an attempt to sway the court. Custody battles can be lengthy as well as costly –
both in financial terms and emotional terms.
AGREEMENT OR TRIAL
Once the discovery phase is complete you and your spouse will either reach a
settlement agreement or decide let the court decide some, or all, of the issues in
your divorce. Sometimes the parties are able to agree on many of the issues but
cannot agree on all, requiring the court to decide the remaining contested issues.
If you and your spouse do reach an agreement it will be filed with the court once
signed by the parties. The court
will review the agreement and, if
satisfied, the judge will sign the
Divorce Decree. If the court
decides contested issues the court
will issue its decision in the form
of a final Decree shortly after the
trial.
The divorce process can be complicated and emotionally exhausting even if you
are the one petitioning for the divorce. Although you are not required to obtain
counsel to represent you in a New York divorce it is best to do so, particularly if
the divorce is contested, you have minor children, and/or there are significant
assets/debts of the marriage to divide. As soon as divorce becomes a possibility,
consult with an experienced New York divorce attorney to ensure that your rights
are protected throughout the process.

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REFERENCES
New York Courts, Introduction to Uncontested Divorce Instructions
Her Justice, Getting a Divorce in New York State
South Brooklyn Legal Services, What You Should Know

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About Simon & Gilman, LLP
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