THE NEW YORK
DIVORCE PROCESS
A BASIC OVERVIEW
Once the Decision to End Your Marriage Has Been Made,
It Is Prudent to Get S...
The New York Divorce Process – A Basic Overview www.simgil.com 2
Making the decision to end a marriage is generally not ea...
The New York Divorce Process – A Basic Overview www.simgil.com 3
of the following requirements must be satisfied:
1. You o...
The New York Divorce Process – A Basic Overview www.simgil.com 4
although the law is sometimes slow to catch up with chang...
The New York Divorce Process – A Basic Overview www.simgil.com 5
THE COMPLAINT AND ANSWER
To begin the divorce process the...
The New York Divorce Process – A Basic Overview www.simgil.com 6
UNCONTESTED DIVORCE
After all of the initial documents ha...
The New York Divorce Process – A Basic Overview www.simgil.com 7
discovery process. Discovery requires you to divulge info...
The New York Divorce Process – A Basic Overview www.simgil.com 8
be ordered and mountains of evidence will ultimately be g...
The New York Divorce Process – A Basic Overview www.simgil.com 9
REFERENCES
New York Courts, Introduction to Uncontested D...
The New York Divorce Process – A Basic Overview www.simgil.com 10
About Simon & Gilman, LLP
Simon & Gilman is the premier ...
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The New York Divorce Process: A Basic Overview

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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.

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The New York Divorce Process: A Basic Overview

  1. 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. 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
  3. 3. The New York Divorce Process – A Basic Overview www.simgil.com 3 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
  4. 4. The New York Divorce Process – A Basic Overview www.simgil.com 4 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.
  5. 5. The New York Divorce Process – A Basic Overview www.simgil.com 5 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.
  6. 6. The New York Divorce Process – A Basic Overview www.simgil.com 6 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
  7. 7. The New York Divorce Process – A Basic Overview www.simgil.com 7 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
  8. 8. The New York Divorce Process – A Basic Overview www.simgil.com 8 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.
  9. 9. The New York Divorce Process – A Basic Overview www.simgil.com 9 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
  10. 10. The New York Divorce Process – A Basic Overview www.simgil.com 10 About Simon & Gilman, LLP Simon & Gilman is the premier law firm in the Queens and New York Metro area. They have expertise in many areas of practice and can help you resolve legal issues that you are confronted with. ACCIDENTS We handle all types of injury cases, including automobile accidents, sidewalk and stairway, elevator, escalator, slip, trip and fall cases, bus, train and plane accidents, sporting activity accidents, snow & ice, defective products, medical malpractice, nursing home, hospital, school accidents, work and construction related accidents, and accidents involving New York City, New York State, and the U. S. Government. SOCIAL SECURITY DISABILITY Representing individuals who have applied for, been denied and refused disability benefits. We pursue all levels of appeal through the Hearing level, Appeals Council and, if necessary, to the Federal Courts CRIMINAL DEFENSE Representing individuals who have been arrested or about to be arrested, from violations to misdemeanors to felony charges, from arraignment through trial, if necessary including domestic violence, assault, shoplifting, driving while intoxicated (DWI), crimes against the person and/or property. WILLS/TRUSTS/ESTATES Representing you and your loved ones in the preparation of Wills, Living Wills, Trusts, Health Care Proxies, Powers of Attorney, and estate planning.Probate and Administration of estates; contested will proceedings and all phases of Surrogate’s Court actions. Arrangements can be made to come to your home or hospital if necessary to prepare any such documents. FAMILY LAW Though often emotional, your case is handled with sensitivity and compassion. Includes such matters as: annulment, divorce, separation, custody, visitation, support, adoption, pre- nuptial/post-nuptial agreements, paternity, Orders of Protection, name changes, Family Court & Supreme Court matters. REAL ESTATE Representing buyers and sellers in both residential and commercial matters, condominiums and cooperatives. Landlord/tenant matters involving non-payment, holdovers and unlawful occupancies.

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