How to get a divorce in New York

[GSMITHBOOK] HOW TO GET A DIVORCE IN NEW YORK, by a New York Divorce Attorney
To get a divorce in New York is harder than it is in any other state in the Union of one of the parties (the defendant) decide they don’t want the divorce. Then you have what is called a grounds trial which is potentially the most ugly and embarrassing and costly aspects of any divorce case. If you fail to prove grounds, you remain married.
Having stated that, what does one have to do to get a divorce in New York?
First, prepare a summons and complaint or a summons with notice. In either, you must allege a basis or ground for the divorce. You must allege your residency requirement has been met. You must select an appropriate county for the divorce action and you must sign the verified complaint if you chose to go with the summons and complaint route. If you go with summons with notice there is no need to sign the summons your attorney can do that.
Next, you must obtain an index number from the county clerk. That is $210.00. Without an index number you don’t have a case. I have seen people make the mistake of serving a spouse without first obtaining an index number. But that just invalidates everything and you have to serve the spouse all over again. First, you obtain an index number, get that number and the summons filed with the court and put on the dockets, and then you serve your spouse.
After that, you wait 20 days for your spouse to respond. If your spouse resides outside New York state, you wait 30 days. If your spouse does not respond within this statutory time frame, then on day 40 you can move for a default divorce.
If your spouse responds, usually he or she will get a lawyer and the lawyer will prepare and answer to the divorce petition. If you only served your spouse with a summons with notice, then the attorney for your spouse will likely ask for a copy of the complaint. This has to articulate the grounds you are using in more graphic detail than the summons with notice. Don’t misunderstand: you still have to allege a ground in the summons with notice, but if a complaint is formally requested, then you have to expand on the summons with notice and provide a verified complaint which is signed by the plaintiff.
After that, if the divorce is going to be contested, then you are looking at all these discovery demands, requests for documents and so forth. Documents include bank statements, pay stubs, real estate deeds, photographs things like that.
Not long after the other side answers you will have what is called a preliminary conference with the court. Both sides have to show up at this conference. The judge basically wants to meet with the parties and their lawyers to see where you are in the process. Has an answer been filed? Is there a pendente lite application? Has discovery been completed? Are there outstanding documents that are required or being requested?
After that, a compliance conference is usually necessary to see if the parties have complied with all the court’s orders.
During this period between the preliminary conference and the compliance conference, either side can make motions for any reason, if it is not frivolous and if there is a legal basis for the motion. At this time, also, the parties are usually looking to see if they can avoid trial and settle the case.
The nettlesome issues are usually custody and the money situation. Custody is usually easier to iron out than money. If the parties are particularly mature, they want to share custody and keep the kids out of their dispute. If not, you could be looking at a custody battle in addition to a trial on distribution of property.
When the trials have all been completed, the judge makes a ruling and signs a judgment of divorce. At that point you are divorced and can remarry if you want.
Between the starting of the divorce action by filing the summons and complaint and the trial, it is not unheard of for the whole process to take a few years – depending on how difficult the case is and how much the parties want to fight.
Not all cases take that long, however. There is such a thing as an uncontested divorce. Those take about six months to a year depending on the court’s dockets how full it is. Even divorces that take years to reach a final determination, the court can bifurcate the divorce meaning the proceeding is split in two. The parties get a judgment of divorce and reserve issues such as custody and equitable distribution for future determination.
By New York Divorce Attorney
If you have further questions please email: lawyertodivorce@aol.com
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