How To File For Divorce in New York

To file for divorce in New York, you need the residency requirement, to prepare the required documents, to file the documents with the court, and to serve summons on the other spouse.

Contested vs. Uncontested

Contested and uncontested divorces are filed in different departments of the court and use different form sets, so it’s important to figure out which route you’re taking before beginning the process.

A divorce is uncontested when both spouses agree on all aspects of the divorce: property settlement, custody, child support and spousal support (maintenance). A divorce can also be uncontested when one spouse does not answer despite being served with summons, either personally or by publication.

The divorce is contested when parties do not agree on all aspects of divorce. Usually, parties do not agree on custody, spousal support, and property settlements.

In cases of contested divorce, it is best that you are represented by an attorney to ensure your rights are protected and you get what you are entitled to. Negotiating your divorce settlement without an attorney can have negative lifetime consequences. If you are looking for a divorce attorney, we at the Law Office of Albert Goodwin are here for you. You can call us at 212-233-1233 or send us an email at [email protected].

Residency requirements

To file for divorce in New York, either of the spouse must have resided continuously in New York for at least two years before filing for divorce in New York. This two-year residency requirement can be reduced to one year if one of the following applies:

the couple got married in New York
the spouses lived in New York as a married couple
the grounds of divorce took place in New York

If the ground for divorce happened in New York and both spouses are residents of New York on the date the action for divorce is filed, the action for divorce may prosper even without fulfilling the one- or two-year residency requirement. New York Domestic Relations Law (DRL) § 230.

Grounds for divorce

Under DRL § 170, a person can file for divorce under one or more of the following grounds:

irretrievable breakdown in relationship for a period of at least 6 months
cruel and inhuman treatment
abandonment
imprisonment
adultery
divorce after a legal separation agreement
divorce after a judgment of separation

Since New York is a no-fault state for divorce (the reason for divorce doesn’t matter and has no impact on the case), most spouses use the first ground, irretrievable breakdown in relationship for a period of at least 6 months, as basis for the divorce, since this ground is considered as no-fault divorce.

Filing your divorce forms

Once you determine that you have the residency requirement, you initiate the action for divorce by filing the divorce forms with the Supreme Court in the county that has jurisdiction. The clerk of court will give you an index number which will serve as the case’s reference number throughout the entire proceeding. There is an uncontested divorce packet in the New York Court’s website that you can use for this purpose: https://ww2.nycourts.gov/divorce/divorce_withchildrenunder21.shtml

Summons

Once your initial divorce forms have been filed and you already have an index number, you can serve your spouse with a summons with complaint or summons with notice. If your spouse cannot be found even with the exercise of due diligence, you can request the court to serve your summons by publishing the notice.

Service to your spouse must be made within 120 days from filing. Once summons has been served, the process server has to submit an affidavit of service with the court.

You cannot serve the summons upon your spouse. The process server must be over 18 years old, not a party to the case, and a resident of New York. In some areas of New York, such as in NYC, the process server must be licensed.

Answer

Once served, your spouse has 20 days to file the answer. If the divorce is uncontested, the spouse files an affidavit of defendant. If the divorce is contested, the spouse files an answer. If your spouse doesn’t answer, the court can render a judgment of divorce by default.

There are several other forms that need to be filed depending on the circumstances of the case. Some of these forms are:

Notice of automatic orders
Notice of guideline maintenance
Notice concerning continuation of health care coverage
Sworn statement of removal of barriers to remarriage
Affidavit of regularity
Annual income worksheet
Maintenance guidelines worksheet
Child support worksheet
Note of issue
Judgment of divorce
Request for judicial intervention
Notice of settlement

Where to file: choosing the correct New York county

Divorce actions in New York are filed in the Supreme Court of a county where one of the spouses resides. There is no separate "family court" path for divorce because, under the New York Constitution, only the Supreme Court has the power to dissolve a marriage. Family Court handles related matters such as child custody, child support, paternity, and orders of protection, but it cannot grant a divorce. If a couple has parallel Family Court proceedings, those cases are often consolidated into the matrimonial action once divorce is filed.

Venue is generally proper in any county where either spouse lives at the time of filing. Strategic considerations sometimes drive the choice of county. Calendaring, the assigned justices' approach to discovery, the local Matrimonial Part rules, and the convenience of witnesses and experts can all matter.

Automatic orders that take effect on day one

The moment a divorce action is commenced, both spouses become subject to the Automatic Orders set out in DRL § 236(B)(2)(b) and 22 NYCRR § 202.16-a. These orders are printed on the Summons and bind both parties immediately. In plain terms, the Automatic Orders prohibit:

Transferring, selling, encumbering, or dissipating marital property without consent or court approval, except in the ordinary course of business or for reasonable customary expenses
Removing the other spouse or any children from existing health, hospital, dental, or life insurance coverage
Cancelling or changing beneficiaries on life insurance policies
Incurring unreasonable debts on joint credit cards or against marital assets

Violating the Automatic Orders can result in sanctions, a finding of contempt, and unfavorable inferences at trial. Clients should review these orders carefully before making any major financial move during the case.

The preliminary conference and discovery

In a contested case, the parties appear for a Preliminary Conference shortly after the Request for Judicial Intervention is filed. The court enters a scheduling order that controls discovery, expert disclosures, and settlement conferences. Both spouses must exchange a Statement of Net Worth listing income, assets, liabilities, and monthly expenses. Discovery may include:

Demand for documents (tax returns, bank statements, brokerage statements, credit card records, retirement plan summaries, business records)
Interrogatories and notices to admit
Depositions of the spouses and of third parties such as business partners
Subpoenas to employers, financial institutions, and accountants
Retention of forensic accountants, business valuators, and real estate appraisers

The discovery phase is where most of the substantive work of a contested divorce happens. Settlement leverage usually grows out of a thorough financial picture rather than out of any single courtroom moment.

Pendente lite relief while the case is pending

A divorce in New York can take many months. During that time, either spouse may need temporary, or "pendente lite," relief. The court can issue interim orders for temporary maintenance, temporary child support, exclusive use of the marital residence, payment of carrying charges, contribution to counsel fees and expert fees, and parenting access. Pendente lite orders are designed to preserve the status quo and protect the less-monied spouse from being financially squeezed during the case.

Uncontested divorce: a streamlined path when both spouses agree

If both spouses agree on every issue, the matter can be filed as uncontested. The plaintiff files the Summons, Verified Complaint, and supporting documents along with the executed Settlement Agreement (often called a Stipulation of Settlement) or, if there are no children and no significant assets, a Joint Affidavit. The court reviews the papers in chambers without a court appearance in most cases. When everything is in order, the judge signs the Judgment of Divorce, and the Clerk enters it.

For uncontested cases involving children, the court will not sign the judgment unless the agreement complies with the Child Support Standards Act, includes proper deviation language if applicable, and addresses health insurance and add-on expenses such as childcare, education, and unreimbursed medical costs.

Common mistakes when filing for divorce in New York

Filing under the wrong residency subsection, which can lead to dismissal months into the case
Skipping the Notice of Automatic Orders and inadvertently violating its terms
Failing to value pensions and retirement assets properly and overlooking the need for a QDRO
Forgetting to remove or update beneficiary designations after judgment
Trying to serve a spouse without a qualified process server, which can void the service
Signing an agreement without proper financial disclosure, which can lead to a later motion to vacate

Filing a divorce may be complex depending on the circumstances of your case. Should you need assistance in divorce settlement agreements or filing for divorce in New York, we, at the law offices of Albert Goodwin, are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].