THE BASICS - Getting a Divorce in New York State

HERJUSTICE.ORG

THE BASICS

Getting a Divorce in

New York State

ACKNOWLEDGEMENTS

The Cross-Borough Collaboration (“CBC”) originated as

a joint project of the Brooklyn Bar Association Volunteer

Lawyers Project and Her Justice (formerly known as

inMotion). Originally launched in 2002, the goal of the CBC

was and continues to be the dissemination of clear and

concise informational booklets for the general public on

various common legal issues. Also known as “The Basics”

series, these booklets have been updated periodically by

Her Justice and continue to be distributed to our clients

on an ongoing basis. We would like to extend our thanks

to the Brooklyn Bar Association Volunteer Lawyers Project

for their initial involvement in this important project. Her

Justice thanks and acknowledges Leila F. Bose, Translator

& Coordinator of Translation Services at Cravath, Swaine &

Moore LLP for their very generous in-kind donation of the

Spanish translation of The Basics booklets.

SOURCES CONSULTED

ORGANIZATIONSCITY, STATE AND NATIONAL

GOVERNMENT AGENCIES

The Brooklyn Bar Association Volunteer Lawyers Project and Her Justice thank the following

agencies and organizations for generously contributing both written materials and advice to assist

in the preparation of the booklets in THE BASICS series.

Administration for Children’s Services,

Parents’ & Children’s Rights Unit and

Division of Legal Services

C-PLAN: Child Planning and Advocacy New,

Public Advocate’s Ofce

New York City Department of Health

New York State Department of

Social Services

New York State Ofce of Court Administration

Social Security Administration

State of New York Unied Court System

U.S. Department of Justice, Immigration

and Naturalization Service

U.S. Department of Justice, Violence Against

Women Ofce

U.S. Department of State Ofce of

Children’s Issues

Association of the Bar of the City of New

York

Bronx Legal Services

The Door

The Family Center

Family Violence Prevention Fund

Lambda Legal Defense and Education Fund

Law Tek Media Group, LLC

The Legal Aid Society, New York City,

Juvenile Rights and Civil Divisions

Legal Information for Families Today (LIFT)

MFY Legal Services, Inc.

New York Association for New Americans, Inc.

New York County Lawyers Association

New York Legal Assistance Group

New York Bar Association

Pace University School of Law

Safe Horizon Domestic Violence Law Project

Sanctuary for Families Center for Battered

Women’s Legal Services

South Brooklyn Legal Services

Urban Justice Center

Women’s Prison Association

Booklets in THE BASICS series

To obtain a copy of other booklets in this series contact us:

100 Broadway, 10th Floor

New York, NY 10005

Tel 212.695.3800 | Fax 212.695.9519

HERJUSTICE.ORG

Getting Child Support

in New York State

Getting an Order of Protection

in New York State

Custody and Visitation

in New York State

Getting a Divorce

in New York State

Getting Spousal Support

in New York State

THE BASICS

Getting a Divorce in

New York State

THE BASICS: DIVORCE IN NEW YORK STATE

Throughout this booklet, you will see references to “spouse” and “parent.”

The denitions of these terms are evolving as the courts endeavor to ad-

dress and expand upon them to include all the many types of families that

exist in our modern world, and take into account the rights of the LGBTQ

community. While there are some areas where the rights of LGBTQ individ-

uals are addressed specically, there are others in which the courts and the

laws have yet to catch up with the times. With regard to divorce, the law

is clear that the spouse is the person to whom you are married, regardless

of your gender or sexual orientation. The laws about divorce apply equally.

However, with regard to “parental” relationships and child custody and sup-

port, the law is evolving and less clear. If you are not biologically related to

a child in your marital or former marital household, you may be granted full

parental rights or only limited/no rights depending on your circumstances.

If you have questions about your rights with regard to a child in your house-

hold who is not biologically related to you, and whom you have not adopted,

seek the advice of an attorney by calling a local bar association or a legal

services organization in the borough where you live.

BEFORE YOU LOOK FURTHER

PLEASE READ THIS:

THE BASICS: GETTING DIVORCE IN NEW YORK STATE

A divorce case can be fairly simple if both spouses want to get divorced and they do not have any

disagreements about their nances or children. If they have children together, the parents may

already have a Family Court order that states who has custody and/or visitation and who pays

child support. If they also do not have money, property, or debt to divide, they may be able to

get divorced in less than a year’s time and without hiring lawyers. People call this kind of case an

“uncontested” divorce.

However, a divorce case can also be very complicated. This happens if the spouses disagree about

nancial issues and/or what happens with their children after the divorce is nal. These divorces

take a much longer time. People call this kind of case a “contested” divorce.

DO I NEED A LAWYER?

It is usually a bad idea to try to get a divorce without a lawyer. This is because you must

provide a lot of information to the court on many different forms and because there are many steps

involved in ending most marriages. However, if you believe your case will be simple and uncontest-

ed, you may be able to represent yourself, since the law does not say that you must have a lawyer.

The information in this booklet should help you gure out how complicated your divorce case may

be. It also explains the legal requirements for getting divorced.

If you have a complicated divorce case, there are several ways you can try to get a lawyer to rep-

resent you. First, you can contact your local legal services or Legal Aid ofce to see if they can take

your case for free. Each borough in New York City has one or more of these ofces. If you qualify

as “low income,” they do not charge you, but they often have long waiting lists of people in need

of divorce lawyers.

Second, if your divorce case involves any custody, visitation or order of protection issues, you have

a right to have a lawyer represent you on these issues. If you do not have enough money to pay a

lawyer, ask the judge to assign you a lawyer free of charge. This free lawyer will not, however, be

required to handle the parts of your divorce case that do not involve custody, visitation or an order

of protection; however, you can contact your local bar association to nd a lawyer who may be able

to assist you on a free or low-cost basis.

Finally, if you do not qualify as low income, try contacting a local bar association or someone in the

courts to nd out the best way for you to get a lawyer to handle your divorce.

THE BASICS: DIVORCE IN NEW YORK STATE

WHAT COURT DO I GO TO FOR A DIVORCE?

The Supreme Court of the State of New York is

the only court that handles divorce cases. You

should go to the Supreme Court in the county

where you live now or in the county where your

spouse lives now.

Each Supreme Court has a matrimonial

clerk. The matrimonial clerk’s ofce has un-

contested divorce packets available for free.

The uncontested divorce packets include all

the papers and forms you will need. There

are also instructions for how to ll out the

forms.

You can download and print the packet for

free from the internet. The internet address is

www.nycourts.gov/divorce/forms.html

HOW MUCH WILL IT COST?

For most people, it costs at least $335 in

ling fees to get an uncontested divorce.

When you start your case, you must pay a

fee of $210. At that time, the court will give

you an index number.*

YOUR DIVORCE WILL

BE UNCONTESTED IF

YOUR SPOUSE DOES NOT

ARGUE WITH (CONTEST)

ANYTHING YOU ARE

ASKING THE JUDGE

TO DECIDE.

You can scan this QR code to

access the webpage with the

divorce packet.

*An index number identies a court

case in the same way that a social

security number or driver’s license

identies a person.

Later on, when your case goes to the Judge for a nal decision, either you or your spouse

must pay another fee of $125. If your divorce case is contested, there will be additional court

fees, including motion fees of $45 per motion. If you need to discontinue a prior case or to

le a settlement, you will need to pay a $35 fee.

THE BASICS: GETTING DIVORCE IN NEW YORK STATE

Yes, you can, if you do three things:

• Show a physical connection to the state (residency, or that you live there).

• Give a reason (a ground).

• Have your spouse personally served.

These three things are described in the Supreme Court’s uncontested divorce packet. The

rst two—residency and grounds—are covered in more detail in this booklet.

It is also a good idea to get a certied copy of the divorce judgment at the end of your case.

Each certied copy costs $8.

However, if you are on public assistance or cannot afford to pay these ling fees, you can

give the matrimonial clerk a sworn statement showing your nancial situation and asking the

Court to excuse you (give you a waiver) from paying the ling fees, so that you can le for

free. You can obtain a sample of the sworn statement at the Ofce for the Self-Represented

in the Supreme Court. This is an ofce for people without attorneys to get information and

basic forms. However, the court employees are not allowed to give you legal advice.

CAN I GET A DIVORCE IN NEW YORK STATE?

Before a New York court can give you a

divorce, you need to show that

you and/or your spouse have lived in New

York State for a certain amount

of time continuously.*

WHAT IS RESIDENCY?

*Continuously means there was

no interruption.

Any one of these situations will work:

• You and your spouse got married in New York, and one of you still lives in New York

and has lived here continuously for one year before the divorce case starts.

THE BASICS: DIVORCE IN NEW YORK STATE

WHAT ARE GROUNDS FOR DIVORCE IN NEW YORK STATE?

• You and your spouse lived in New York as a married couple at some point during your

marriage, and one of you still lives in New York and has lived here continuously for one

year before the divorce case starts.

• The reason for getting divorced happened in New York, and one of you lives in New

York and has lived here continuously for one year before the divorce case starts.

• The reason for getting divorced happened in New York, and both you and your spouse

still live in New York when the divorce case starts.

• Either you or your spouse is living in New York and has lived in New York continuously

for two years before the divorce case starts.

If you can show the Judge one of these

legal reasons, you should be able to get

your divorce:

• Irretrievable breakdown of the relation-

ship (“No fault”)

• Cruel and inhuman treatment

• Abandonment

• Imprisonment

• Adultery (rarely used and not recom-

mended)

• Living apart with a legal separation

agreement

If you want a divorce and are having trouble guring out your legal reason, it will help to talk

to a lawyer about what is going on in your marriage.

WHAT IS IRRETRIEVABLE BREAKDOWN?

You may get a divorce if you state to the Court in your divorce papers that the relationship

between you and your spouse has been broken for at least six months and the relationship

cannot be xed. This is also known as a “no fault” divorce.

GROUNDS ARE THE

LEGAL REASONS FOR

GETTING A DIVORCE.

THE BASICS: GETTING DIVORCE IN NEW YORK STATE

WHAT IS CRUEL AND INHUMAN TREATMENT?

In the papers you le in court, you will need

to describe your spouse’s behavior and say

why this behavior is cruel and inhuman

and how it affects you. These are some

examples of cruel and inhuman treatment:

• Physical abuse

• Mental abuse

• Sexual abuse

• Threats of physical, mental or sexual

abuse against you and/or your child, a

family member or a friend

• Verbal abuse

• Economic abuse

IF YOUR SPOUSE

BEHAVES TOWARD YOU

IN A WAY THAT MAKES

IT UNSAFE OR IMPROPER

FOR YOU TO CONTINUE

LIVING WITH THEM,

THIS IS CRUEL AND

INHUMAN TREATMENT.

If you le your divorce papers using “no fault” grounds, you do not have to prove that

your spouse did anything wrong, or that one of you is at fault for the break up. You do not

have to give a reason for why the relationship broke down. You simply have to state that

the relationship has been broken for six months, and cannot be xed.

You can choose “no fault” as your grounds even if you also have other grounds

for divorce.

It is best to describe cruel and inhuman treatment by your spouse during the most recent

ve years of your marriage—just before the start of your divorce case. If your spouse was

cruel to you more than ve years ago, you can give the Judge this information. But if your

spouse objects and says that this happened more than ve years ago, the Judge will not

look at what happened that long ago.

If you and your spouse lived together before getting married and your spouse was cruel

to you when you were living together but not after you got married, the cruelty before the

marriage does not count in your divorce case.

THE BASICS: DIVORCE IN NEW YORK STATE

Usually, you need to tell the Judge about at least three times that your spouse treated you

cruelly and inhumanly, unless one thing that your spouse did was very serious.

You must say how each of your spouse’s actions affected you physically, men-

tally or emotionally.

Did you:

• Fear for your life?

• Need to run away from home?

• Get medical treatment?

• Get an order of protection?

• Feel ashamed or humiliated?

You must also say when and where each act of cruelty happened, with as much detail as

you can remember. You do not need to say the exact date and time. For example, you may

remember that it happened in a particular month or season or during a particular holiday.

And you may remember that it was during the day, at breakfast time. If another adult saw

or heard what your spouse did, include that information, too.

If your spouse abused you verbally, you should give the Judge the actual words your

spouse used, even if they are offensive to hear. For example, you may tell the Judge if

your spouse called you “a dumb bitch” in front of your best friend.

If your spouse is not helping with the bills or is keeping you from going to school or getting

a job, these are examples of economic abuse.

If your spouse has committed adultery, you can describe this behavior as cruel and inhu-

man treatment. Remember that you will need to describe how the adultery affected you

badly. (Adultery is described later in this booklet.)

IF YOUR SPOUSE ABANDONS YOU, THAT MEANS THEY HAVE

LEFT YOU FOR GOOD.

THE BASICS: GETTING DIVORCE IN NEW YORK STATE

If you say you were abandoned, you need to prove three things:

• That your spouse walked out on you, leaving the home where the two of you were

living together, planning not to return.

• That your spouse has been gone for at least one continuous year.

• That you did not agree that your spouse should leave you.

Your spouse has to have been gone for at least one year straight at the time you start

your case. If your spouse moved out for nine months, then moved back in for a month,

then moved out again, you will need to wait a year from the second time they moved out

before the Judge will decide that they legally abandoned you.

It is NOT abandonment if:

• You asked your spouse to leave.

• Your spouse said they were leaving and you agreed they should leave.

• Both you and your spouse agreed to separate.

• You locked your spouse out of your home.

• You treated your spouse so badly that they had to leave.

There is a second type of abandonment. You can get a divorce if you tell the Judge about

behavior by your spouse called “constructive” abandonment.

Your spouse may have forced you to leave your home (for example, locked you out) or

refused to have sex with you for at least one year continuously. You and your spouse

cannot have had sex even once in the year just before you start a divorce case, if this is

your reason for wanting a divorce. And your spouse’s refusal to have sex with you must

be their fault.

WHAT IS ABANDONMENT?

THE BASICS: DIVORCE IN NEW YORK STATE

It is not constructive abandonment if:

• Your spouse is sick and, as a side effect of the illness or medication, is impotent (cannot

have sex).

• Both you and your spouse agreed not to have sex.

• Neither you nor your spouse asked for sex, or offered it. This is because it looks to the

Judge like you agreed with your spouse not to have sex.

WHAT IF MY SPOUSE IS IN PRISON?

If your spouse has been in prison for three or more continuous years after the date you

were married, a Judge will give you a divorce for this reason. Your spouse must have been

in prison for at least three years before you start the divorce case, and they cannot have

been released from prison more than ve years ago.

You will need to get a letter from the warden of the prison where your spouse is or that says

how long he has been or had been in prison.

However, if you and your spouse got married when they were in prison, you cannot use this

reason for getting a divorce from them.

And if your spouse has been in and out of prison during the last three or more years, but

was never in for three years straight, you cannot use this reason for getting a divorce from

them.

WHAT IS ADULTERY?

Adultery is very difcult to prove in court, so you should try not to use this as your reason

for getting divorced. Very few people get divorced claiming adultery as the reason for their

divorce. This is because the law says someone other than you needs to actually see your

spouse committing adultery with another person and be willing to come to court to tell the

Judge what they saw. People usually do not commit adultery in public, so nding a witness

is difcult and expensive.

THE BASICS: GETTING DIVORCE IN NEW YORK STATE

However, if your spouse has committed

adultery, especially if you saw it or they

brag about it, you can describe this adul-

tery as cruel and inhuman treatment to the

Judge, because this is a kind of emotional

abuse. In this case, the legal reason for

your divorce will be cruel and inhuman

treatment (described earlier in this book-

let), rather than adultery.

IF YOUR SPOUSE HAS

SEX WITH SOMEONE

ELSE WITHOUT YOUR

CONSENT WHILE THE

TWO OF YOU ARE

MARRIED, THIS IS

ADULTERY.

HOW CAN I GET A DIVORCE USING A SEPARATION AGREEMENT?

If you and your spouse get divorced using a written separation agreement, neither of you

has to accuse the other of anything.

If you want to get divorced this way, you and your spouse will need to talk through and

agree on all the important issues connected to ending your marriage. The agreement must

cover how you will live separately for the rest of your lives.

Here are only some of the things that must be covered in your separation agreement:

• How you and your spouse will divide any property you got while you were married (for

example, which one of you gets the car, the money in your bank account or money in a

pension account).

• Who gets to keep the home you have been living in together (the marital home), or whether

neither of you will.

• Who will get custody of your children, if any, and whether and when the other gets to visit

with the children

• How much child support the parent without custody has to pay.

• How much spousal support, if any, either you or your spouse has to pay to the other and for

how long.

• Whether one or both of you will provide medical or life insurance for the other or the children.

• Which one of you will be paying any debts you may have.

THE BASICS: DIVORCE IN NEW YORK STATE

Because these contracts have many technical requirements in order to qualify

as a legal separation agreement, it is very difcult to get divorced using a sep-

aration agreement unless you have a lawyer.

After living separately for one year from the date you both signed the separation agreement

and doing what you agreed to do in the agreement, either you or your spouse can go to

court and begin a divorce case. You will need to ll out forms and le for divorce in the same

way that you would using any other grounds for divorce. In this case, your grounds will be

living apart with a legal separation agreement.

The main reason you start a divorce case

is to end your marriage to your spouse.

But there are other important issues you

can ask the Judge to decide as part of your

divorce case. These are things that are

connected to the ending of your marriage.

Generally, they involve children, property

and nancial issues.

Three issues that are often connected to

ending a marriage are never handled in

Family Court. So you must ask the Judge in

your divorce case to decide these things at

the same time as you ask for the divorce, if

they are important to you:

• Use of your maiden name or some other

last name you used before your marriage

(prior surname).

• Division of property or debts (equitable

distribution).

• Maintenance (support for you after the

divorce is done). This is sometimes called

alimony in other states.

IN THE LEGAL PAPERS,

A DIVORCE IS CALLED

“DISSOLUTION OF THE

MARRIAGE” BECAUSE

YOU ARE ASKING THE

JUDGE TO ORDER THAT

YOUR MARRIAGE TO

YOUR SPOUSE IS ENDED,

OR DISSOLVED.

WHAT WILL THE JUDGE DECIDE IN MY DIVORCE CASE?

THE ADDITIONAL THINGS

YOU ASK THE JUDGE TO

DECIDE, SUCH AS CUSTODY,

SUPPORT AND/OR

EQUITABLE DISTRIBUTION,

ARE CALLED ANCILLARY

RELIEF.

THE BASICS: GETTING DIVORCE IN NEW YORK STATE

Other issues that can be decided as part of your divorce:

• Custody

• Visitation

• Paternity

• Child support

• Health insurance

• Maintenance, while the divorce is pending. You can ask a court to order spousal support for

you while you are still married even if you do not have a divorce case. Please see The Basics

Series booklet on spousal support for more information.

• Order of protection

However, some people handle these things in Family Court, even if they do not need or

want a divorce. The advantages of going to Family Court for an order on any of these

things are that there are no court ling fees, and getting a Family Court order may be

quicker than waiting for the issue to be handled as part of a divorce.

There are other booklets in The Basics Series that explain custody and visitation, child

support, spousal support and maintenance, and orders of protection. For more details

about these subjects and how they are handled in Family Court, look at those booklets.

However, here is a short summary of these subjects.

Custody and Visitation:

If you and your spouse have children under the age of 18 and there is no Family Court order

giving custody to either of you, the Judge must decide which parent will get custody as part

of your divorce case. You will have to list the name, birth date and social security number

for each child you and your spouse have together in your divorce papers.

If you want custody of your children, you must ask the Judge to give custody to you in your

divorce papers. You do not need to ask the Judge to give visitation to your spouse in the

divorce papers. If your spouse wants visitation, they can ask for it themselves in the divorce

case or they can go to Family Court later and ask for visitation.

THE BASICS: DIVORCE IN NEW YORK STATE

If you wish, however, you can ask the Judge to give your spouse either “reasonable visita-

tion” or a specic visitation schedule, if you and your spouse have already have agreed on

a visitation schedule.

When deciding custody, courts will look to all related custody and visitation decisions in

court proceedings, abuse or neglect decisions, the sex offender registry, and the order of

protection registries.

Remember, you have a right to be represented by a lawyer if there is any disagreement

between your spouse and you about custody or visitation issues. And you can ask for the

Judge to appoint you a free lawyer if you cannot afford to pay for one.

Paternity:

Children born while the parties are married are considered to be children of the marital rela-

tionship, regardless of who signed the birth certicate. For example, if a woman has a child

with a man she is not married to while she is separated from but still legally married to her

spouse, that child will be considered to be a child of her spouse even if the biological father’s

name is on the birth certicate. A court will have to decide which person is the legal father.

Child Support:

In New York State, parents must support their children until they are 21 years old, unless

the children are completely self-supporting. This means that you must list the name, birth

date and social security number of any children under the age of 21 in your divorce papers,

even though they may be too old for a custody and/or visitation order. The Judge will then

decide which parent owes child support for your children. Usually, this will be the parent

who does not have custody.

In most counties in New York City, the Judge will not grant a divorce if the spouses have

children under the age of 21 unless the parent who wants custody asks for child support

from the other parent.

THE BASICS: GETTING DIVORCE IN NEW YORK STATE

IF A FAMILY COURT ORDER IS INCLUDED (OR CONTINUED)

AS PART OF YOUR DIVORCE ORDER, EVERYTHING THAT

THE FAMILY COURT DECIDED STAYS THE SAME AND DOES

NOT HAVE TO BE DECIDED ALL OVER AGAIN.

So, if you are asking for custody, you must also ask the Judge in your divorce case to order

child support to be paid by your spouse. This is true even if your spouse is in jail, is home-

less or is receiving public assistance. You also need to ask the Judge to order either your

spouse or you to be responsible for paying the cost of health insurance and other healthcare

expenses not covered by insurance for the children.

Health Insurance:

In most cases, if you are covered under your spouse’s health insurance plan, your health

insurance will end (terminate) immediately once a divorce is nal (entered). You will then

be responsible for obtaining your own health coverage through a COBRA option or through

another health plan.

If you and your spouse have children, then the parent who has health insurance will be re-

quired to continue providing health insurance for the children, if reasonable to do so. If both

you and your spouse have health insurance, then the court will determine whose health

insurance plan the children will be on. The cost of providing health insurance will be shared

between the parties in proportion to their income. If neither party has health insurance, the

court will direct the custodial parent (the parent with the greatest proportion of custody) to

apply for the state’s child health insurance plan.

If you or your spouse already has an order from the Family Court covering custody, visita-

tion, and/or child support, then you should ask the Judge in your divorce papers to include

the Family Court order as part of your divorce judgment. If you want a child support order

included, however, it must be “current,” which means no more than three years old.

You will need to state which Family Court gave the order, the docket (index) number, the

date and what was decided. You must attach a copy of the Family Court order to the divorce

papers that you le in Supreme Court.

THE BASICS: DIVORCE IN NEW YORK STATE

Automatic Orders:

When starting a divorce action, regardless of whether you or your spouse ask for equitable

distribution (dividing up assets, money, or debts), you and your spouse will be subject to an

automatic order that you may not sell or do anything to lessen the value of the property (for

example, take out a loan using the property as collateral), sell, transfer, conceal or assign

any of this property until the divorce is concluded. In addition, neither of you may take on

additional unreasonable debt. This order does not apply to your usual expenses, household

expenses or reasonable attorney’s fees for your divorce case.

Maintenance:

You can ask the Judge to order your spouse to give you nancial support for a period of

time after you are divorced until you can get on your feet nancially. This type of support is

called “permanent” or “post-judgment” maintenance. In some states, this type of support is

called alimony. Maintenance may not last forever and may have an end date. The court will

take into consideration how many years you and your spouse have been married in order to

determine for how long you will receive maintenance.

The judge looks at your and your spouse’s current nances and then, uses a formula to

gure out how much maintenance must be paid.

If you are the one asking for maintenance, the judge looks at your income and your spouse’s

income up to $178,000. If you and your spouse have children together, the judge also looks

at who is paying child support and who has custody of the children. The judge takes all of

this information and uses a mathematical formula to gure out how much spousal support

your spouse will be required to pay you.

After guring out the amount of maintenance that your spouse will have to pay, the judge

will then look to see if the amount is too little or too much for him to pay. The judge looks at:

• Your and your spouse’s age and health

• Your and your spouse’s ability to work in the future and your work history

• Your and your spouse’s need for education or training expenses

• If your spouse’s obligation to pay child support ends, then spousal support may need

to be recalculated

THE BASICS: GETTING DIVORCE IN NEW YORK STATE

• If you or your spouse wasted marital money or hid money from each other

• If you or your spouse stopped the other from working

While your divorce case is going on, if your spouse earns more than you, you may also ask the

Judge to award you temporary nancial support, which your spouse will pay to you until the di-

vorce becomes nalized. This type of support is called “temporary” or “pendente lite” maintenance.

Even if your spouse earns more than you, the Judge will not order your spouse to pay tem-

porary maintenance if they would not be able to support themselves while making payments.

There are maintenance calculators available

to determine whether you are entitled to

temporary maintenance under the law:

www.nycourts.gov/divorce/

calculator_013116.pdf

You can scan this QR

code to access the web-

page with maintenance

calculators

If you are seeking temporary maintenance and child support, the amount you receive in tem-

porary maintenance gets subtracted from your spouse’s income and added to your income

before child support is calculated.

Also, remember that maintenance works both ways, so if you earn substantially more than

your spouse, they may ask the Judge to make you pay them maintenance.

Order of Protection:

If you are worried about your safety and/or the safety of your children, you can ask the

Judge for an order of protection as part of your divorce case. The order of protection usually

lasts for at least two years but can last for a much longer period of time, depending on the

history of abuse in the marriage. You can also ask the Judge to order that you stay in your

home and that your spouse move out (this is called exclusive possession of the marital

residence), if this is necessary for your safety.

Remember, if you are asking for an order of protection, you have a right to be represented

by a lawyer in this part of your divorce case. And you can ask the Judge to appoint you a

free lawyer if you cannot afford to pay for one.

THE BASICS: DIVORCE IN NEW YORK STATE

You may need the Judge to make a decision on some of these things right away. If so, you

can ask for what you need as soon as you start your case or while your case is going on.

For example, you can ask the Judge to order your spouse to pay temporary child support,

temporary maintenance, and attorneys’ fees while your divorce case is going on.

You must ask in writing and have a copy of your written request given to your spouse. The

Judge will then schedule a hearing date in court where you and your spouse will have the

chance to answer questions about your request. Then the Judge will decide whether or not

to grant your request.

ATTORNEYS FEES AND EXPERT FEES

Attorneys’ Fees:

If your spouse earns substantially more

than you, you can also ask the Judge to or-

der your spouse to pay your attorneys’ fees.

This way, you may be able to hire a lawyer

even if you cannot afford one yourself. Just

like temporary maintenance, though, if you

are the one who earns more money, your

spouse may ask the Judge to make you pay

their attorneys’ fees.

Expert Fees:

Sometimes in a divorce, people need to

hire experts to help present evidence to the

judge. For example, you may need an ex-

pert to determine the value of a home or a

pension, so that the judge can decide how

to divide the assets in the divorce. If your

spouse earns substantially more than you,

you can also ask the Judge to order your

spouse to pay your expert fees. However,

if you earn more than your spouse, your

spouse may ask the Judge to make you pay

the expert fees.

WHEN THE JUDGE DECIDES THE FAIREST WAY TO DIVIDE

MONEY AND PROPERTY BETWEEN YOU AND YOUR SPOUSE

AND WHICH OF YOU HAS TO PAY DEBTS YOU OWE, THIS IS

CALLED EQUITABLE DISTRIBUTION.

THE BASICS: GETTING DIVORCE IN NEW YORK STATE

WHAT IF MY SPOUSE AND I HAVE PROPERTY OR DEBTS TOGETHER?

If your case is uncontested but you are ask-

ing the Judge to cover nancial issues in

your divorce judgment (for example, child

support or school tuition for your child),

the Judge may ask you to le a statement

of net worth form*.

*A statement of net worth is a form

where you list all of your nancial infor-

mation in detail, including all income,

expenses, assets (such as a pension

or bank account), property and debts.

It is a sworn statement that must be

signed in front of a notary public.

If you, or your spouse, have a lot of property or debts, or if one or both of you have a

pension, you should have a lawyer representing you to make sure that you get what is fair.

Part of your divorce case is dividing up money and/or property and deciding who has to

pay outstanding bills or taxes that have not been paid. There are no easy answers about

what is fair. The division will not necessarily be equal or 50-50. You and your spouse may

agree about how to divide these things, but if you cannot, the Judge will make the nal

decision based on information you and your spouse give the Judge in your case.

If you and your spouse disagree about any nancial issues, the Judge will ask each of you to

ll out and le a statement of net worth. You will both need to send a copy of your statement

of net worth to each other. You will be able to see the information your spouse includes on

his form and he will be able to see your information.

The Judge will look at the information in both forms when deciding how to divide up your and

your spouse’s marital property and debt. The Judge is supposed to divide these things fairly.

The Judge will look at many things when deciding who gets what, including:

• Your and your spouse’s income and property both at the present time and at the time

you got married.

• How long you were married.

• How old and how healthy you and your spouse are.

• Whether the parent who has custody should stay in the marital home with the children.

• Whether one of you will pay maintenance to the other.

THE BASICS: DIVORCE IN NEW YORK STATE

• Whether one of you earns more money or could earn more money in the future

because of your education and work experience.

• Whether one of you tried to hide or give away some marital property to keep the

other from getting it in the divorce.

MARITAL PROPERTY INCLUDES ALL PROPERTY THAT YOU

AND YOUR SPOUSE ACQUIRED BETWEEN THE DATE YOU GOT

MARRIED AND THE DATE YOUR DIVORCE CASE STARTS.

It does not matter whose name is on the marital property. For example, if you bought a car

sometime after you were married, even if the car is registered only in your name, the Judge

considers it marital property. Also, if your spouse has a pension through their job, if you were

married to them while they were working at that job, their pension is also marital property.

The Judge will decide how to divide everything that you or your spouse bought with money

you both earned while you were married.

This may include:

• Homes

• Cars

• Bank accounts

• Businesses

• Pensions

• Educational degrees

SEPARATE PROPERTY IS

NOT MARITAL PROPERTY

AND WILL NOT BE

DIVIDED UP AS PART OF

YOUR DIVORCE.

If you or your spouse has any of the following things, it could be separate property:

• Something one of you got before you were married.

• Something you got as a gift (but not from your spouse) or something your spouse got

as a gift (but not from you).

• Something you or your spouse inherited.

• Money for pain and suffering because of personal injuries (from insurance or a lawsuit).

THE BASICS: GETTING DIVORCE IN NEW YORK STATE

Something that starts out as separate property can change into marital property.

This can happen if one of you puts money or time into improving the other person’s separate

property. For example, your spouse may have made a down payment on a house before

you got married, but you may have made most of the mortgage payments while you were

married. That house will now be marital property. What started out as your house could also

become marital property if you put your spouse’s name on the deed. The Judge will also

decide which of you must pay any money you owe.

This may include:

• Credit card balances

• Loans

• Income taxes

• Mortgage payments on your home

• Children’s school tuition

If there is more than one debt, the Judge

may order you to pay some and your spouse

to pay others. The Judge will look at who

caused each debt and for what reason.

MARITAL DEBT INCLUDES

ANYTHING YOU AND

YOUR SPOUSE OWE,

STARTING WITH THE

DATE YOU GOT MARRIED

AND ENDING ON THE

DATE YOUR DIVORCE

CASE STARTS.

HOW CAN I STOP USING MY SPOUSE’S LAST NAME?

If you used your spouse’s last name during your marriage, you should ask the Judge to

order that you can use your maiden name or some other last name (former surname) you

used before your marriage in the divorce judgment. This does not mean you have to stop

using your spouse’s last name right away. It just means you can choose to stop using your

spouse’s last name whenever you wish.

HOW DO I GET TO STAY IN OR RETURN TO MY HOME AND GET MY

SPOUSE TO LEAVE?

If you and your spouse own a home together, or you have a rental apartment and both of

your names are on the lease, and you want to stay in the apartment but you want your

THE BASICS: DIVORCE IN NEW YORK STATE

spouse to leave, you can ask the Judge to give you “exclusive occupancy of the marital

residence.” The Judge will be most likely to give exclusive occupancy to the party who

needs it the most, for example, the person who is the primary caretaker of the children, or

the person who is least able to afford to nd another place to live. If you own the home,

the sale of the home and division of the money from the sale can be put off until some

future time, for example, when your children have grown and are ready to leave home.

HOW DO I START MY DIVORCE CASE?

The Supreme Court’s uncontested divorce packet explains in detail how to start your case.

It includes:

• A list of all the papers needed.

• Instructions for completing each form the Court requires.

• The order you need to do things in and how long you have to complete each step.

• How you place your case on the calendar of the Court so that a Judge will sign an order

that makes your divorce ofcial (gives you a divorce judgment).

WHAT IF MY SPOUSE WANTS TO CONTEST THE DIVORCE?

If your spouse does not want a divorce or

objects to some part of the relief you have

asked for, your spouse or their lawyer will

send you a notice of appearance and also

le it with the Court. Or you may get a no-

tice directly from the Court that they are

contesting the case.

A NOTICE OF APPEARANCE

IS A PAPER THAT TELLS

THE COURT THAT YOUR

SPOUSE WANTS TO SPEAK

UP (APPEAR) IN THE

DIVORCE CASE.

If your spouse noties you and the Court that they are contesting by ling a notice of

appearance, then you should try every way possible to get a lawyer to represent you.

There are important deadlines to meet in a contested divorce and it is important that you

respond in time. You should try to get a lawyer’s advice in a contested divorce, even if you

decide you want to represent yourself.

THE BASICS: GETTING DIVORCE IN NEW YORK STATE

HOW LONG WILL IT TAKE TO GET A DIVORCE?

If your spouse does not contest your divorce, it normally takes at least six months to get

a nal judgment of divorce. The actual length of time will depend upon several things,

including how many divorce cases are going on in that Court, and whether you completed

the papers that you led in your case correctly. If you make any mistakes in your papers,

you will have to correct them and this will delay getting your nal judgment signed.

If your spouse contests the divorce, it will take much longer. It could take as long as sev-

eral years, depending on how many issues you and your spouse cannot agree on.

THE BASICS: DIVORCE IN NEW YORK STATE

NOTES:

THE BASICS: GETTING DIVORCE IN NEW YORK STATE

NOTES:

THE BASICS: DIVORCE IN NEW YORK STATE

NOTES:

THE BASICS: GETTING DIVORCE IN NEW YORK STATE

NOTES:

THE BASICS: DIVORCE IN NEW YORK STATE

NOTES: