New York Divorce Guide

Do It Yourself Divorce

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New York State has been dragged, kicking and screaming, into the modern age with its adoption of no-fault divorced. Once the sole holdout on no-fault divorces, the Legislature finally passed a law in 2010 , dramatically reducing barbaric and messy divorces. So much for the saying; I went to a hockey game last night and a messy divorce broke out. When the announcement came in 2010, you could barely hear it over the gnashing of matrimonial lawyer’s teeth.

Irretrievable Breakdown

Married couples that are in agreement can file under the grounds of Irretrievable breakdown of at least 6 months. Either party must have been a resident of the State at least 2 years for the divorce to be accepted at the County Clerk of the Court office.

Settlement Agreement

Navigating a divorce pro se (representing yourself) is still DIY Divorcea dicey and complicated endeavor. If you are up to it, you can avoid fault divorces by filing for the no-fault, uncontested divorce mentioned above. If you and your spouse are in agreement on all pertinent issues (custody and support, division of assets, debt and property and parenting time allocation), you can complete and submit a Settlement Agreement which details resolution of all of the above issues.

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Your settlement agreement must pass muster with the court, and it is tested to be certain it complies with state law. In addition, the court can actually change some terms of your agreement if it believes the agreement is unfair to one party. If you are filing on fault-grounds, you will need to specify on which fault ground (see our grounds tab above).

The process

The party initiating the divorce (the Plaintiff) files the Summons and Verified Complaint or Summons with Notice with the county Clerk of the Court in the county either of you live (make sure you gather a full packet of forms rather than piecemeal). The distinction between the two is that the Summons and Verified Complaint requires more detail from you. Check the New York State Unified Court System web site for up-to-date filing fees (currently the cost to pay for an Index Number/your place in line) is $210.00.

Serve your spouse (and we do not mean dinner, although you may be thinking of arsenic as a spice)

Your spouse must be notified (served) within 120 days of your filing your paperwork with the county clerk’s office. Anyone (other than you) over the age of 18 may serve papers on your spouse. State law does not permit service on Sundays (probably because it conflicts with other services on Sunday). If you and your spouse have tax deductions children from the marriage, you must also provide Child Support Standards Chart with the service.  Include the Affidavit of Defendant form with service to your spouse.

Forms

If your spouse agrees to everything, s/he will return the Affidavit of Defendant. If your spouse does not return the form, you must submit the Affidavit of Service form, which is signed by the person you used to originally serve your spouse.

More Forms

If you get the sense that forms will not be flying your way from your spouse, and you were married in a religious ceremony, you must file the Sworn Statement of Removal of Barriers to Remarriage form.

If your spouse signed the affidavit of defendant, then you can place your case on the court calendar. if s/he refused to return it, you must wait 40 days (and 40 nights) before placing your case on the calendar.

Make it simple – get a packet of forms

Confused yet? It is much simpler if you obtain a packet of forms based on your situation (with or without kids, with or without assets, etc.) and follow the directions.

Where you need to file your divorce papers

Divorces are filed with and decided in Supreme Courts around the state. You also have the option of asking a local court to decide issues other than the termination of your marriage. Those issues may include custody, support, visitation, abuse against a spouse or child, guardianship, paternity and other issues surrounding the end of the marriage save dissolution.

If one of you has filed in the Supreme Court, filing with the lower court is discouraged and usually requires that the case be consolidated with the higher court. You can, however, ask a lower court to change an order that was made during the divorce after you are divorced.

If you and your spouse need assistance coming to an agreement

If you and your partner wish to divorce but cannot agree on parenting arrangements or how to divide assets, you should consider divorce mediation or collaborative law. Mediation allows for an impartial person trained in the law and mediation to draw you two together and work out your differences in a skilled, controlled environment. Mediation is almost always cheaper than a jury trial, allows each of you more participation in how the problems get resolved, and permits a more enduring satisfaction that you each received a fair shake.

Collaborative law is practiced by attorneys specifically trained in the approach, which requires the parties (you, your spouse and your attorneys) make a commitment that you will resolve your differences by negotiation without resorting to a trial. In most states, if one spouse decides to terminate the collaborative process, bot lawyers must resign and the couple has to start their divorce all over again.

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