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  • Overview of Divorce Process in New York

    Going through a divorce is an emotional and taxing procedure, and even if you believe that your divorce will be “uncontested,” meaning that your spouse will agree to the divorce, therefore avoiding trial, there are many issues beyond simply terminating the marriage that must be considered. Consulting with or retaining an attorney is always a good first step. An attorney can make sure that your legal rights are protected and can help you with any issues that may come up during the course of your divorce.

    The first step involves preparing and filing your divorce forms. Obtaining a divorce in New York is very intricate and involves filling out and filing many court forms, even if your divorce is uncontested. All of the forms you will need to obtain an uncontested divorce are available on the New York Courts website. The first form you will you have to fill out is the “Summons With Notice (Form UD-1)” or the “Summons (Form UD-1a)” and “Verified Complaint (Form UD-2).” The Summons is the form that starts your divorce action in Supreme Court and names you as “plaintiff” and your spouse as “defendant.” The choice between using a Summons With Notice and a Summons and Verified Complaint is just a matter of detail. Both forms will require you to provide all-encompassing information, including the “grounds” or motive you’re seeking a divorce as well as other “relief” you’re seeking, like child custody, child support, division of property, and maintenance (also known as alimony). However, if you file the Summons and Verified Complaint, you have to include more information about you, your spouse, and your children. Once you choose and fill out the forms, you will need to make two additional copies. Then, bring your completed forms to the county clerk’s office to file them. You can file in the county where you or your spouse reside. The clerk’s office will assign your case an “Index Number” which you or the clerk will need to put on your forms, along with the filing date. You have to pay $210 to the clerk for the Index Number. However, if you can’t pay the fee, tell the Clerk you want to fill out the “Poor Person’s Waiver” forms. If you qualify, you won’t have to pay the fees.

    Upon completion of these forms, you then have to “Serve”, or deliver a copy of these forms to your spouse within 120 days of the original filing date. If your spouse lives in New York, anyone other than you that is a resident of New York State, as well as over the age of 18 years old, can serve your spouse. Service must be “personal,” which requires handing the papers to your spouse in person. Your spouse can be served any day of the week except for Sundays. If your spouse lives in another state, you have to follow the rules for service in that state. If there are children involved, a copy of the Child Support Standards Chart must be served along with the Summons. You should also include the “Affidavit of Defendant (Form UD-7)” and instructions on how to fill it out. This is a form for your spouse to fill out, sign, and send back to you within 40 days if your spouse agrees to the divorce.

    From here, you must wait for your spouse’s response to the divorce. If your spouse agrees to the divorce, your spouse will sign and send back the affidavit of defendant form within 40 days. If your spouse won’t complete and return the affidavit, then whoever served your spouse with the summons needs to prepare an “Affidavit of Service (Form UD-3),” which proves that your spouse received copies of the paperwork. If your spouse does not return the affidavit and you were married in a religious ceremony, then you must fill out the “Sworn Statement of Removal of Barriers to Remarriage (Form UD-4) and have someone other than you, over the age of 18, send a copy to your spouse by mail. If your spouse files a “Notice of Appearance” and disagrees with any part of your divorce papers, then your divorce is no longer uncontested and you should consult an attorney.

    At this point, if your spouse signed the affidavit of defendant, then you can place your case on the court calendar at anytime. If your spouse did not sign the form, then you have to wait 40 days after serving him with the papers. The New York Courts website has specific instructions for filling out each of the following forms, all of which are required to place your case on the court calendar:

    1. Summons with Notice or Summons and Complaint
    2. Affirmation of Regularity (Form UD-5, which requests that your case be put on the calendar)
    3. Affidavit of Plaintiff (Form UD-6)
    4. Three copies of the Note of Issue (Form UD-9)
    5. Findings of Fact/Conclusions of Law (Form UD-10)
    6. Judgment of Divorce (Form UD-11)
    7. Part 130 Certification (Form UD-12)
    8. Affidavit of Defendant (Form UD-7, if your spouse signed and returned it to you)
    9. Certificate of Dissolution of Marriage
    10. Postcard, and
    11. USC 111 — Divorce and Child Support Summary Form.

    If your spouse did not sign and return the affidavit of defendant, then you must also file:

    1. Affidavit of Service (Form UD-3), and
    2. Sworn Statement of Barriers to Remarriage (Form UD-4).

    If you and your spouse have children together, then you also have to file the forms related to child support (Forms UD-8, UD-8a, and UD-8b). If you are filing in a court other than in one of the five New York City Boroughs, then you must also file the “Request for Judicial Intervention (Form UD-13).” Bring all of your completed forms to the county clerk’s office to file them. Unless you were granted a waiver based on income, you may have to pay certain filing fees. The clerk will submit all of your papers to the judge. If the judge approves your paperwork, he or she will issue a judgment of divorce.

    In order to avoid a trial and have a truly uncontested divorce, you and your spouse should have agreed on a settlement to all issues, including division of property, alimony, otherwise known as “maintenance”, and child custody and support. Any or all of these issues can be dealt with through mediation or sitting down and coming to an agreement that both you and your spouse consent to. All settlements are subject to the judge’s examination. Therefore, even though neither you nor your spouse has to file a financial disclosure statement with the court to obtain a divorce, the judge will still make sure that child support is satisfactory and division of property is reasonable before delivering a ruling. The court provides a “Statement of Net Worth” to assist you and your spouse in determining monetary problems. You can each fill one out and exchange them in order to come to a fully-informed agreement that the judge approves of. If you and your spouse can’t agree on custody and child support, you can file a petition in Family Court. The Family Court can issue orders pertaining to child custody and support that can then be included in your final judgment of divorce. Even if there are prior court orders or a prior agreement between you and your spouse, the court may still require a hearing on maintenance, custody, visitation, or distribution of property. If a hearing is required, the court will notify you and your spouse to appear.