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 original 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 of the attorneys or, if unrepresented, of the parties themselves.
Usually, the total fees will be approximately $400, as follows:
Starting the case: It costs $210 to buy a case Index Number at your County Clerk’s Office to start a New York State divorce case.
Later in the case: Other fees totaling approximately $160 will have to be paid. These additional fees will be described as you follow the steps in this booklet.
At the end of the case: If the court grants the divorce, several other fees will have to paid for certain legal papers showing that the divorce was approved. These costs vary from county to county, but will roughly total $5-$30.
The responsibilities of a stepparent depend on state law. A stepparent usually is not required to pay child support for a spouse’s child from another marriage, unless the stepparent has adopted the child. Until then, the child’s biological parents are liable for the child’s support. Some states, however, make stepparents liable for the stepchild’s support as long as the stepparent and stepchild are living together.
A stepparent who does not adopt a spouse’s child normally may not claim custody of the child if the marriage ends in divorce, although some states allow a stepparent to seek visitation.
A stepchild usually does not share in the estate of a stepparent, unless the stepparent has provided for the stepchild in a will. However, an unmarried stepchild under eighteen may receive supplemental retirement benefits or survivor’s benefits under Social Security.
There is no one factor that is invariably “the” most important factor in a custody case. The importance of a particular factor will vary with the facts of each case. If one parent in a custody dispute has a major problem with alcoholism or mental illness or has abused the child, that of course could be the deciding factor.
If neither parent has engaged in unusually bad conduct, the most important factor often is which parent has been primarily responsible for taking care of the child on a day-to-day basis. Some states refer to this as the primary caretaker factor. If one parent can show that he or she took care of the child most of the time, that parent usually will be favored for custody, particularly if the child is young (under approximately eight years old).
Under the current law of almost all states, mothers and fathers have an equal right to custody. Courts are not supposed to assume that a child is automatically better off with the mother or the father. In a contested custody case, both the father and mother have an equal burden of proving to the court that it is in the best interest of the child that the child be in his or her custody.
There are a few states (mostly in the South) that have laws providing that if everything else is equal, the mother may be preferred; but in those states, many fathers have been successful in obtaining custody, even if the mother is a fit parent.
In some states, courts say that mothers and fathers are to be considered equally, but the courts then go on to hold that it is permissible to consider the age or sex of the child when deciding custody. That usually translates to a preference for mothers if the child is young or female. But, again, it is possible for fathers in those states to gain custody, even when the mother is fit.
Child custody is the right and duty to care for a child on a day-to-day basis and to make major decisions about the child.
In sole custody arrangements, one parent takes care of the child most of the time and makes major decisions about the child. That parent usually is called the custodial parent. The other parent generally is referred to as the noncustodial parent. The noncustodial parent almost always has a right of visitation a right to be with the child, including for overnight visits and vacation periods.
In joint custody arrangements, both parents share in making major decisions, and both parents also might spend substantial amounts of time with the child.
Direct payment of a former spouse’s health insurance normally is not part of an alimony agreement or order, although the recipient certainly may wish to use some of the alimony payments to purchase health insurance if the recipient is not already covered.
When a couple divorces, the health insurance policy covering the family (if there was such a policy) no longer covers both spouses. The policy covers only the spouse who had insurance through work or through an individual policy. Children who were covered under a family policy generally are still covered under the policy after a divorce.
A federal law passed in the 1980s requires most employer sponsored group health plans to offer divorced spouses of covered workers continued coverage at group rates for as long as three years after the divorce. The divorced spouse of a worker must pay for the coverage, but the coverage is available.
The recipient of alimony may wish to seek an agreement or court order to guarantee support in the event of the payor’s death. The usual method of guaranteeing support is to require the payor to maintain an insurance policy on his or her own life with the recipient as beneficiary. The amount of the policy should be high enough to compensate for the loss of alimony payments.
In order to ensure that the insurance policy remains in effect, the recipient may seek to require the payor to provide periodic proof that the policy is still in force. This could be accomplished by having the payor provide an annual copy of the policy showing full payment of premiums for the coming year. The recipient also may seek to have a provision in the policy that would require the insurance company to notify the recipient in the event that payments are not made on time.
The factors considered by a court when deciding whether to order alimony based on need of the recipient are similar to the factors considered by a court when dividing property.
1. Income and Property of Each Party. The greater the income and property a divorced spouse has, the less likely it is that the spouse will need alimony. Conversely, the less income and property a spouse has, the more she or he will need alimony. Payment of alimony also depends on the ability of one spouse to pay. Alimony is most likely when there is a substantial difference in the property and income of one spouse versus the other. If the spouses’ levels of property and income are similar, alimony is less likely. In looking at the difference in property held by the spouses, courts consider the division of property in connection with the divorce. Some courts order a larger share of property to the less prosperous spouse in order to avoid or reduce the need for alimony to the less prosperous spouse.
2. Earning Capacity of Each Spouse. A related factor is the present and future earning capacity of each spouse. If one spouse’s earning capacity is much larger than the other spouse’s earning capacity, that is a significant factor in favor of payment of alimony. To the extent that the earning capacities of the spouses may come closer together by giving the spouse with lower earnings additional time to pursue training, the court may use that as a factor for granting rehabilitative maintenance.