Steps To Start A Divorce Action In New York

By: Undisputed Legal/Family Court Process Service Department

STEP 1. Prepare an original and two copies of the Summons With Notice (Form UD-1) or the Summons and Verified Complaint (Form UD-1a and Form UD-2).

STEP 2.Purchase an index number at the County Clerk’s Office and file the original of the Summons With Notice or the source of the Summons and Verified Complaint with the County Clerk. Unless you are granted a poor person’s waiver, you will be required to pay $210 for the index number. Check with the County Clerk regarding acceptable forms of payment. Many County Clerks also will require that you fill out an Index Number Application Form at the time of filing, so be sure to bring with you the names, addresses, and telephone numbers of all attorneys or, if unrepresented, of the parties themselves.

STEP 3. Put the index number and the filing date on the two copies of the Summons With Notice (or the Summons and Verified Complaint) if a clerk does not do this upon filing the papers.

STEP 4.Defendant agrees to the divorce; he or she will need to sign the Affidavit of Defendant (Form UD-7). This might be done by submitting the form to Defendant together with the Summons With Notice or Summons and Verified Complaint and Notice of Automatic Orders and Notice of Guideline Maintenance if the divorce was commenced on or after 1/25/16. Plaintiff should send the form to Defendant with a copy of the instructions on filling it out. The defendant must send the completed form back to Plaintiff before having the case placed on the calendar so that the document can be filed with the other states. If Defendant does not return the signed form to Plaintiff, follow STEP 5 below.

STEP 5. Have the Defendant served with one copy of the Summons With Notice or Summons and Verified Complaint, and the Notice of Automatic Orders, the Notice of Guideline Maintenance, if the divorce was commenced on or after 1/25/16, and the Notice Concerning Continuation of Health Care Coverage, by being personally handed the papers. NOTE: The Maintenance Guidelines apply only to divorces commenced on or after 1/25/16, and therefore you should not serve the Notice of Guideline Maintenance with the Summons if your divorce was started before 1/25/16. “Maintenance” means support paid by one party to the marriage (“spouse”) for the help of the other party under a Final Judgment of Divorce.

  • If your spouse lives in New York State: The server must be a resident of New York State, over eighteen years of age, and cannot be a party to the action (this means you may not serve your spouse with the Summons).
  • If your spouse is presently residing outside of New York State: You must still ensure that he or she is personally served with the summons. If you use a non-New York State resident to help your spouse outside of New York State, the server must be a person authorized to do service under the laws of that jurisdiction or a duly qualified attorney in that jurisdiction, and you must submit a copy of the authorization that allows that person to serve the summons. You are encouraged to check with the local sheriff and, if necessary, with a country’s Consulate or Embassy regarding any local requirements for service. 

Service upon the Defendant of the Summons With Notice or Summons and Verified Complaint and Notice of Automatic Orders must be made within 120 days of filing with the County Clerk’s Office. If you do not know where the Defendant is located, you may wish to delay filing the Summons With Notice or Summons and Verified Complaint until he or she is found so that the 120-day period does not begin running while you search for your spouse. 

 IMPORTANT: The Notice of Guideline Maintenance must also be served with the Summons With Notice or Summons and Verified Complaint BUT ONLY if Your Action Was Commenced on or after January 25, 2016.

IMPORTANT: If there are children of the marriage under the age of 21, you must also serve a copy of the Child Support Standards Chart on the Defendant.

STEP 6.If you had to follow STEP 5 above because Defendant would not agree to complete and return the Affidavit of Defendant, the person that served Defendant must prepare an “Affidavit of Service” (Form UD-3), which attests to the service of the Summons With Notice or Summons and Verified Complaint, Notice of Automatic Orders, Notice of Guideline Maintenance if the divorce was commenced on or after 1/25/16, and any other documents served. This affidavit must be submitted along with the full set of divorce papers when you place your case on the court’s calendar. There is a 40-day waiting period from the service date to putting the matter on the court’s calendar. If Defendant does not sign Form UD-7 to waive the 40 day period, you must wait the full 40 days.

STEP 7.If the parties were married in a civil ceremony or Defendant signs the Affidavit of Defendant (Form UD-7), SKIP THIS STEP. If the parties were married in a religious ceremony, Defendant must be served with a copy of the Sworn Statement of Removal of Barriers to Remarriage (Form UD-4). The plaintiff must fill out the original and make a copy of the form. The document must be served on the Defendant either by personal service and the Summons With Notice or the Summons and Verified Complaint or by mail. If you fill the form by mail, it must be done before you place your action on the court’s calendar because you will need to file the original condition with the other required documents. Service by mail must be done by someone other than the Plaintiff over the age of 18 and not a party to the action. When you file this form, you must attach the Affidavit of Service (Form UD-4a).  

If Defendant appears and does not consent to this action:* Then your matter is no longer an uncontested matrimonial, and you will be unable to obtain an uncontested divorce. You may want to consult an attorney at that point.

For information on serving legal papers, click here or call (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out our Frequently Asked Questions About Process Servers by clicking here.

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