By Akanksha A. Panicker
The long road to divorce can often mean trying to navigate an exhausting and potentially expensive course. Divorce proceedings begin with one spouse bringing a suit for divorce proceedings against the other, the initiating spouse who filed the action for divorce being called the “plaintiff.” The other spouse (the one that needs to respond to the lawsuit for divorce) is called the “defendant.”
An uncontested divorce is the easiest and least troublesome form of divorce available. Meeting the requirements for this means that the individuals involved agree about the need for the divorce, division of property, and the custody of children, if any, amongst other conditions. It must be noted that disagreement on these fronts makes it more difficult to proceed with the action. As the disagreements grow more severe, divorce mediation, collaborative lawyers, or a personal attorney grow more imperative to the issue. Whether one goes to court is dependent on whether it is a contested or uncontested divorce.
[1.0] What is the residency requirement?
A prerequisite for divorce in New York is proof of residency, indicating that the individual has lived or been present in New York for a certain minimum period of time. This may be seen in the case that both parties were married over the continuous period of one year, and either one was living in the city at the time. Additionally, it must be noted that the idea of residency covers the fact that the circumstances that are lead to divorce occurred in the city that either one or both spouses lived in for a continuous period of one year.
If both individuals were not married in New York and have never lived as husband and wife there, then one person should have lived there for a continuous period of two years.
The divorce paperwork should be filed in the Supreme Court in the county where the spouses live. The divorce action initiation would require the plaintiff to file a summons or a summons with the complaint. A summons’ purpose is to invite the other party to the legal proceeding; it intimates that the divorce action is underway. A complaint, on the other hand, is a document that details the specific reasons for divorce.
If a summons is served without a complaint, the defendant has 20 days to serve a “Notice of Appearance” on the plaintiff, which notifies the court of the defendant’s participation in the court process. Once the defendant appears in court, the plaintiff has 20 days to serve the defendant with the complaint. If the summons is filed with the complaint, the defendant has 20 days to answer the complaint.
[2.0] Service requirements for divorce
In a divorce, the server delivers the Summons and Complaint to the defendant. The server then completes an Affidavit of Service that identifies the recipient, the date, time, and address. In the event there is no address, place, and manner of service and set forth facts showing that the service was made by an authorized person and in an authorized manner.
The responding party must be served with the Summons to ensure that they are notified of the divorce action. The service method herein would require the divorce paperwork to be handed directly to the individual, a service method called personal service. Often, the affidavit of service in personal service describes the recipient, including details like sex, hair color, etc.
The person serving the papers on the defendant cannot be one of the parties to the case, which means one spouse cannot serve the other. The server can be a friend, relative, or a process server hired by the plaintiff and be at least 18 years old. The defendant completes the acknowledgment of receipt and mails or delivers one copy of it within 30 days from the date of receipt. Service is complete on the date the signed acknowledgment of receipt is mailed or delivered to the sender. The signed acknowledgment of receipt proves the service.
[2.1] Service by publication
Service by publication provides constructive notice when one spouse is missing. This order entails a summons and a notice to the defendant in addition to a statement of the nature of the relief sought for the divorce action. This will then be published in a newspaper once in the subsequent three weeks.
Often, this order for a summons’ service is to be mailed on or before the first day of the aforementioned publication. The caveat to this will be if the person cannot be located even following due diligence taken and if the court allows for the dispensation of this mailing. Adequate care must be taken to find the missing spouse, however.
[3.0] Grounds for divorce.
New York divorce law changed on August 15, 2010, when Governor David Paterson signed no-fault divorce into law in New York State. Until 2010, New York recognized divorces only upon fault-based criteria or upon separation. After the amendment, spouses can pursue divorce that is classified as either fault-based or no-fault. In the latter, the only ground necessary to be stated is that the marriage has ‘irretrievably broken’ for a period of over six months, indicating the relationship between the spouses cannot be repaired. The fault does not need to be stated, and the court does not need any more justification from the parties.
In contrast to this, fault-based divorce requires wrongdoing on the part of the defendant, which led to the marital bond’s dissolution. The grounds for this are limited, including cruel and inhuman treatment, including physical, mental, or emotional abuse, abandonment for a continuous period of at least one year of constructive abandonment, constructive abandonment, imprisonment for three consecutive years, and adultery. Adultery is difficult to prove as it requires corroborating evidence from a third party; thus, the defendant’s statement that he or she had sexual relations with a third party is not legally admissible to permit the court to grant a divorce to the plaintiff. Furthermore, if the adultery was “condoned,” i.e., the cheated-on party knew about the extra-marital sexual relationship but continued to stay in a marital, conjugal relationship with their spouse, the adultery cannot serve as a cause for divorce.
Today, there aren’t many benefits to filing for a fault-based divorce. However, if your state views fault as a factor in determining alimony or marital property division, it’s something to consider.
The third basis for divorce is also divorce based on separation. The grant of this form of divorce hinges on proof that the two parties lived separately for a year minimum, signing a written agreement outlining terms and conditions of the separation. The separation agreement is submitted with the summons and the divorce complaint, which will allow the Judge to add the same to the divorce proceedings.
[4.0] A brief view of alimony in a divorce
Alimony, or spousal support and maintenance, has seen a shift away from lifetime or permanent alimony. This form of alimony is now typically reserved for long-term marriages, and in the current divorce environment, it seems almost obsolete.
One is more apt to see a court award limited duration alimony. Examples of this short-term spousal support could be rehabilitative alimony (given for the period of time allowable for a spouse to enter the workforce viably) or reimbursement alimony (awarded in short marriages where one spouse contributes to the other’s educational pursuits). The determining factor in recent alimony proceedings has been one spouse’s needs weighed against the others’ ability to pay.
In addition to the emotional reasons to resist a divorce, people may have reasons that have to do with money. Ending the marriage allows the court to divide property even if one’s spouse doesn’t agree to do so. Even if you don’t get a divorce, one’s spouse must still provide support for as long as the marriage lasts, and a spousal support order can thus be arranged from Family Court.
For more information on serving divorce papers, contact a divorce process service (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 Types Of Orders Of Protection And What Each One Does.
1.DRL § 230
2.NY DRL §170.7)
3.Domestic Relations Law §170.1
4.NY DRL §170.2
5.Occurs when one spouse refuses to have sexual interactions for at least one year
6.NY DRL §170.3
7. NY DRL §170.4