What You Need to Know About Divorce

Any legally married person who meets the state’s residency requirements and has valid grounds for divorce can commence an action for divorce in New York State.

You will meet New York’s residency requirements if:

Either you or your spouse have been a resident of New York State for a continuous period of at least two years prior to the start of the action; or

Either you or your spouse have been a resident of New York State for a continuous period of at least one year prior to the start of an action, and is a resident of the state at the time the action is commenced, and you either 1) were married in
New York State or 2) lived together as husband and wife in New York State; or

Either you or your spouse have been a resident of New York State for a continuous period of at least one year prior to the start of an action and the grounds for divorce occurred in New York State; or

The grounds for divorce occurred in New York State and both you and your spouse are New York residents at the time the action is started.

A divorce action is must be commenced in New York State Supreme Court, and is properly brought within the county where either you or your spouse reside. The action is commenced with the purchase of an index number (for which the fee is currently $210.00) and the filing of either a 1) Summons with Notice, or 2) Summons and Verified Complaint (together with required notices pertaining to health care insurance and certain automatic orders) with the County Clerk’s office.

The spouse who starts the action (who is designated the “plaintiff” in the action) must then arrange for the other spouse (who is designated as the “defendant” in the action) to be personally served with the divorce papers which were filed with the Court within 120 days of the start of the action. For this reason, it is advisable that the plaintiff determine the defendant’s location for purposes of service prior to starting an action. Once a matrimonial action is commenced, certain automatic orders immediately become effective which prohibit both parties from transferring assets, incurring unreasonable debts, or making changes to insurance coverage while the divorce case is pending.

If you are on public assistance or have low or no income, you may be able to have your filing fees waived by filing an application with the Court for a fee waiver (also known as “poor person’s relief”). The application will include a notarized affidavit from you explaining your financial circumstances and why you are unable to pay the court fees. You can obtain copies of the necessary forms and/or instructions from the Pro Se Office (also known as the “Office of the Self-Represented”) located in the courthouse. If the Court grants your application, you will not have to pay any fees. However, if the Court denies your application, you will have 120 days to pay any required fees.

The plaintiff cannot serve the defendant himself or herself. He or she must arrange for another person, who is over the age of 18 and unrelated to the case, to make personal service on the defendant. Unless otherwise directed by the Court, personal service requires personal/hand delivery.

If the defendant resides out-of-state, it is preferable to have service made by a New York resident, although this might be costly. If a someone who is not a New York State resident serves the defendant outside of the state, that person must generally be a qualified attorney, solicitor or the equivalent in that other state or nation, or otherwise authorized to serve papers pursuant to the laws of that state or nation. After making service, the server of the papers must complete a notarized affidavit which the plaintiff must file with the Court as proof of service.

Once service has been properly made upon the defendant, the Court may exercise jurisdiction (or authority) over the defendant.