Divorce - Frequently Asked Questions

What is a divorce?

Divorce is the final, legal ending of a marriage by court order. If you have a divorce case in court, you may hear lawyers and court staff call it a matrimonial action. The person who starts the divorce is called the plaintiff, and the other spouse is called the defendant.

Where do I go to for a divorce?

The Supreme Court of the State of New York is the only court that handles divorce cases, and a Supreme Court judge is the only person who can legally grant a divorce. You should go to the Supreme Court in the county where you or your spouse now live. You cannot get a divorce in Family Court.

Although Family Court cannot give you a divorce, you can go to your local Family Court for help with child support, child custody, child visitation, spousal support (also known as spousal maintenance), and paternity.

What is an annulment?

Unlike a divorce that ends a valid marriage, an annulment establishes that the marriage is not legally valid, and the grounds for annulment are different from a divorce. To get an annulment, you will need to prove ONE of the following:

•Bigamy: one of the parties was still married to someone else at the time of the second marriage;

•Either spouse was incurably unable to have sexual intercourse at the time of the marriage;

•After marriage, either spouse becomes incurably insane for five (5) years or more. The Court may require the sane spouse to support the Marriage between persons under 18, if the spouse under 18 wants the annulment. The annulment will not be granted if the person under 18 freely cohabited (had sexual relations) with the other spouse after turning 18.

•Spouse is unable to understand the nature, effect and consequences of marriage because of mental incapacity.

•Spouse agreed to marry as a result of force or duress by the other.

•Fraud (most common ground): the consent to marry was obtained by fraud that would have deceived an ordinarily prudent person and was material to obtaining the other party's consent. The fraud must go to the essence of the marriage contract. Concealment of a material fact may constitute fraud. Sexual intercourse evidencing forgiveness is an absolute defense.

To learn about religious annulment, you should consult the religious faith that performed the marriage.

Annulment is defined in Domestic Relations Law §140. If you would like an annulment, you should seriously consider speaking to a lawyer. The court does not provide forms for annulment.

How do I start a divorce case?

You will need to buy an Index Number at the County Clerk's Office and file a Summons with Notice or a Summons and Verified Complaint (which has the reasons for the divorce). Next, you will need to have another person over the age of 18 who is not a party to the action serve your spouse with the papers. For more information on filing fees, completing and serving papers, placing your case on the court's calendar, and other procedures, please carefully follow the Uncontested Divorce Forms Packet Instructions.

Do I need a lawyer to get divorced?

Because divorce law can be complicated, you should meet with a lawyer — even if you think your divorce will be uncontested. If you and your spouse have resolved all financial and parenting issues, and you do not have a lawyer, you can use the free Uncontested Divorce Forms Packet from the court. You must first read the Uncontested Divorce Forms Packet Instructions before trying to complete the process on your own.

If you have parenting or financial issues to work out, you may want to consider alternative dispute resolution (ADR) processes like divorce mediation or collaborative family law. These out-of-court processes often save time and money, reduce stress, and even improve relationships between parents and their children after divorce. ADR may not be appropriate in cases involving domestic violence, child abuse, or where one spouse cannot locate the other. [see What if I cannot locate my spouse?]

What Are the Grounds for Divorce

In New York, an action for divorce may be maintained on any one of the following grounds, as set forth in the New York Domestic Relations Law section 170:

(1) the cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well-being of the plaintiff as to render it unsafe or improper for the plaintiff to cohabit with the defendant;

(2) the abandonment of the plaintiff by the defendant for a period of one or more years prior to the commencement of the action;

(3) the confinement of the defendant in prison for a period of three or more consecutive years after the marriage;

(4) the commission of an act of adultery by the defendant;

(5) the parties have lived apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment, provided the plaintiff has substantially performed all the terms and conditions of such decree or judgment, and;

(6) the parties have lived separate and apart pursuant to a written agreement of separation, subscribed by the parties in a form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement and the plaintiff has substantially performed all the terms and conditions of such agreement.

(7) irretrievable breakdown of a marriage.See, Domestic Relations Law section 170.

Most of the grounds set forth in the Domestic Relations Law are fault-based grounds, with the exception of the final three grounds. The fifth and sixth ground permits divorce where the parties have lived apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment or the parties have lived separate and apart pursuant to a written agreement of separation, subscribed by the parties in a form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement.

The final ground, irretrievable breakdown of the marriage, is the most recent addition, and may also be considered a no-fault ground in that it does not require the assignment of fault or blame; it merely allows for a divorce where one of the parties expresses that the marriage has broken down, and there is no hope for reconciliation. Simply put, the marriage is "dead".

What if I cannot locate my spouse?

New York state law requires that the defendant in a divorce action be personally served with the Summons with Notice or Summons and Verified Complaint. To have your spouse served in any other way, you must get permission from the court. You can apply for such permission by filing an application for alternate service with the Supreme Court Clerk's Office in the county where you filed your divorce case.

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