DIFFICULTY: Legal assistance is required
Initial Filing Fee: $210
In New York, there are six grounds for divorce: abandonment, cruel and inhuman treatment, imprisonment, adultery, conversion of a judgment of separation (another legal agreement that requires its own grounds and legal procedure to obtain) to a divorce decree, and conversion of a written separation agreement to a divorce decree. There are also a number of requirements relating to the “location” of the marriage, i.e. where the ceremony occurred, and where the married couple lived during the marriage. If all of the above took place in New York, a New York court has the power to grant a divorce. If the marriage has no ties to New York State, a New York court cannot grant the divorce. Consult an attorney if you are unsure whether your marriage falls under New York jurisdiction.
Step 1: Determine Whether there are Grounds for Divorce
Identify your basis for requesting a divorce. New York Courts will not simply grant divorce because a party requests it. Rather, one of the grounds for divorce must be met. Before purchasing an index number and instituting a divorce proceeding, the person seeking divorce must research and identify a basis for divorce— abandonment, cruel and inhuman treatment, imprisonment, adultery, or conversion of a separation. No-fault divorce (a divorce without grounds) is a grey area in New York, so it is crucial to be clear about your reasons for seeking a divorce.
Step 2: Determine in Which County You Will File for Divorce
Consult NY CPLR Article 5 (New York law on venue) to determine venue, or location, where the action is commenced. Commencing the action in the wrong venue could delay proceedings and result in additional costs, so it is advisable to conduct appropriate research in order to determine which venue is appropriate. In situations where one of the spouses resides outside the state, it may be advisable to consult an attorney, as additional complications may arise in connection with the court’s jurisdiction, service of process, etc.
Step 3: Commence the Action
File the complaint and purchase an index number (which serves as an identifier for your case) at New York Supreme Court for $210, which will begin a divorce proceeding. The appropriate form to use will depend on whether the marriage has produced children still under the age of 21. Forms for an uncontested divorce in a marriage without children under 21 can be obtained at the New York State Unified Court System website. For contested divorces, it is best to obtain legal counsel.
Step 4: Serve the Defendant Spouse
Serve the Defendant Spouse within 120 days of filing the complaint. Keep in mind that you cannot personally serve the Defendant Spouse; someone who is not a party to the case must do it. If the Defendant Spouse evades service, substituted service is also available. Substituted service requires first delivery of the papers within New York by a person of suitable age and discretion to the actual place of business, dwelling place or usual place of abode (residence) of the person to be served, and second, mailing of the papers by first class mail to the person to be served at his or her last known residence or actual place of business.