What Is a No-Fault Divorce, When Did It Start and Why It Can Be Bad
Table of Contents
- New York Divorce Records
- What Are the Residency Requirements for Divorce in New York?
- What Are the Grounds for Divorce in New York?
- How Much Does It Cost to File for Divorce in New York?
- How Long Is the Waiting Period for Divorce in New York?
- How To File for Divorce in New York?
- Are Divorce Records Public in New York?
- How To Get Certified Copies of a Divorce Decree in New York?
- Divorce Settlement: Is New York a 50/50 State?
- FAQs about the Divorce Process in New York
New York Divorce Records
In 2022, New York reported a divorce rate of 2.3 divorces per 1,000 people, slightly below the national average of 2.4 per 1,000, but also higher than rates recorded in the state for the previous year. Reports also indicate that divorce rates amongst New Yorkers tend to be higher among African American and White populations compared to other ethnic groups.
There are two main types of divorce records in New York:
- Divorce Decrees: these are court-prepared documents that detail the terms and conditions of the divorce. Divorce decrees are maintained locally by County Clerks.
- Divorce Certificates: these documents contain basic information about the divorce - details of the spouses, and the date and place the marriage ended. Divorce certificates are maintained by the New York State Department of Health.
It should be noted that New York divorce records are generally considered confidential; access to these records is typically limited to the couple named on the record, their attorneys, or through a court order.
What Are the Residency Requirements for Divorce in New York?
Under New York Domestic Relations Law Section 230, at least one of the following conditions must be met to file for divorce in New York:
- The couple got married in New York, and one spouse has lived there continuously for at least one year before filing.
- The couple has resided in New York as spouses and at least one of them has lived there continuously for at least one year before filing.
- The cause of the divorce occurred in New York and either both spouses were residents at the time of filing or one of them had lived there continuously for at least one year before filing.
- At least one spouse has lived in New York continuously for at least two years before filing.
What Are the Grounds for Divorce in New York?
Divorces in New York may either be "fault-based", where one spouse must prove that the other spouse's actions caused the marriage to fail, or "no-fault-based", where neither spouse has to prove wrong-doing. There are seven legal grounds for divorce in New York:
- Irretrievable Breakdown: the marriage must have been broken for at least six months. This is a no-fault-based divorce.
- Cruel and Inhuman Treatment: one spouse must have been on the receiving end of specific acts of cruelty within the last five years that make it unsafe or improper to continue living with the other spouse.
- Abandonment: one spouse must have abandoned the other for at least one year. This may be by physically leaving with no intention of returning or refusing intimacy.
- Imprisonment: one spouse must have been in prison for at least three consecutive years after the marriage began. The other spouse may file for divorce during the incarceration period or within five years of their spouse's release.
- Adultery: one spouse must prove that the other has committed adultery during their marriage.
- Divorce After Legal Separation Agreement: both spouses must have signed and filed a valid separation agreement and lived apart for at least one year.
- Divorce After Judgment of Separation: this is sometimes called a "conversion" and involves the Supreme Court drawing up a judgment of separation and the couple living apart for at least one year. This ground is rarely used.
How Much Does It Cost to File for Divorce in New York?
The average cost of a divorce in New York is $13,835. This is more than the average costs in the neighboring states of Connecticut ($12,360) and New Jersey ($12,300), and significantly higher than the national average of $9,970, making New York one of the most expensive states to file for divorce in.
New York divorce costs include a minimum filing fee of $335 (for uncontested divorces, plus other associated expenses, which typically include:
- Attorney fees
- Notary fees
- Process server fees
- Family therapy costs
- Mediation costs
- Forensic accounting costs
- Joint debts and property division
- Spousal and child support calculations
- Relocation expenses
How Long Is the Waiting Period for Divorce in New York?
New York does not impose a mandatory waiting period after divorce papers are filed before the divorce may be granted. However, couples who are legally separated and wish to get divorced on these grounds must have lived apart for at least one year (after the separation agreement was signed).
How To File for Divorce in New York?
The divorce process in New York typically involves the following steps:
- Confirm that you meet the state's residency requirements for filing.
- Determine the grounds for the divorce.
- File the necessary paperwork with the Supreme Court in the county where you or your spouse live (forms may be obtained from the courthouse).
- Serve the divorce papers to your spouse. This typically has to be done within 120 days of filing, and your spouse has 20 – 30 days to respond, depending on whether they are served within or outside the state.
- Negotiate a settlement. If you and your spouse agree on all financial and parenting issues (uncontested divorce), you may draft and submit a settlement agreement, along with other necessary documents, to the court for review and approval. However, if you and your spouse cannot come to an agreement, mediation and/or court hearings may be held till all issues are resolved.
- Once all issues are resolved, the judge will sign a Judgment of Divorce, which finalizes the process.
You may utilize the resources hosted on the New York State Unified Court System's official website to get more information on New York's divorce process.
Are Divorce Records Public in New York?
Under state law, New York divorce records are confidential for 100 years and are restricted to the couple named on the record, their attorney(s), and parties with a valid court order. However, divorce records older than 100 years are typically considered public and may be accessed by any interested party.
How To Get Certified Copies of a Divorce Decree in New York?
New York divorce decrees are maintained locally by County Clerks – usually in the county where the spouse who filed for the divorce lived (or still does) - and certified copies of these documents may be accessed through these officials. The cost of obtaining these documents varies by location; you may contact the appropriate County Clerk for specific information on this, as well as to find out their respective processing times for record requests. Be aware that divorce records in New York are generally restricted to the couple named on the record and their attorneys, but they may also be accessed by individuals with a court order.
Alternatively, the New York State Department of Health (DOH) maintains a statewide repository for divorce records from January 1, 1963 to date. Note that the records maintained by this office are divorce certificates, not divorce decrees. These divorce certificates contain less comprehensive information than divorce decrees and mostly serve as official proof that a divorce was granted.
You can obtain certified copies of divorce certificates from the DOH by mailing an Application for Copy of Divorce Certificate Form, along with the stipulated fees (usually $30 per copy), and supporting documents (such as a copy of a valid photo ID) to:
New York State Department of Health
Vital Records Certification Unit
P.O. Box 2602
Albany, NY 12220-2602
Divorce Settlement: Is New York a 50/50 State?
In New York, property is grouped into two categories for divorce:
- Marital Property: anything either spouse acquired during the marriage, no matter whose name is on it, including pension and retirement plans earned during the marriage.
- Separate Property: anything a spouse owned before the marriage, plus inheritances, personal injury payments, or gifts from others during the marriage.
Under state law, separate property remains separate during a divorce, while marital property is distributed between the spouses equitably (not equally). The total property awarded to each spouse is determined by several factors, such as the duration of the marriage, each spouse's income and property at the time of the marriage and the commencement of the divorce process, and the total value of the marital property. To this end, each spouse may not necessarily get an equal amount, as is obtainable under the community property (50/50) approach utilized in states like California. Instead, they are given an amount considered "just and proper".
FAQs about the Divorce Process in New York
Here are answers to some commonly asked questions about the divorce process in New York.
How Do I Modify a Divorce Decree in New York?
The New York Domestic Relations Law makes provisions for the modification of divorce decrees in the event of a substantial change in either party's circumstances that may affect their ability to comply with the original ruling. To this end, you may request a modification for child support, child custody/visitation, and alimony by filing a motion with the Supreme Court that issued the original divorce decree or a Family Court of jurisdiction. A hearing is typically held, where you generally need to demonstrate a substantial change in circumstances, such as a significant change in income, employment status, needs of children involved, or marital status of your ex-spouse.
How Do I Enforce a Divorce Decree in New York?
You may enforce a divorce decree against a non-compliant ex-spouse in New York by making an application to the Family Court or Supreme Court of jurisdiction. The court will typically hold a hearing, where your ex-spouse will be required to answer why the divorce decree is not being followed and sanctioned if they are found in contempt.
What Are the Restrictions to a Divorce Decree in New York?
Under New York state law, child support, custody, visitation, and alimony judgments or orders may be modified if the circumstances of either party significantly change. Judgments or orders issued on matters involving marital property division are generally considered unchangeable; however, modifications may be made in cases where fraud or misrepresentation during the initial proceedings is proven.
Can I Efile My Divorce in New York?
Yes, divorce cases may be filed online in New York using the New York State Courts Electronic Filing (NYSCEF) System. You will typically need to create an account to e-file new cases. Note that the e-filing option may not be available in all counties; you may contact the NYSCEF Resource Center for e-filing availability in your location.
How Do You Serve Divorce Papers in New York?
In New York, you (the Plaintiff) have two options for serving divorce papers to your spouse (the Defendant):
- You may hand over the papers yourself if your spouse agrees to not contest any part of the divorce and to return a signed and notarized "Affidavit of Defendant."
- If you are unsure whether your spouse will contest the divorce or return the affidavit, then the papers must be served by someone else. This server must be at least 18 years old, and a New York State resident if the papers will be served within the state. If the papers are to be done outside the state, the person may be a New York State resident or someone duly authorized to serve papers per the laws of that jurisdiction.
Once the divorce papers have been served, the server must complete, sign, and notarize an "Affidavit of Service" as proof of delivery; this document must be returned to you (for filing) if the service process was handled by a third party.
Does New York Mandate Couples to Participate in Divorce Mediation or Counselling?
Mediation is not mandatory in New York but is usually recommended by courts, especially in contested cases (excluding ones involving domestic violence, drug/alcohol abuse, or child neglect/abuse). This mediation is usually handled by a neutral third party tasked with helping the couples work through their issues to reach a mutually agreeable settlement.
How Do I Seal My Divorce Records in New York?
Per New York Domestic Relations Law Section 235, all records of divorces granted in the state are automatically sealed for the first 100 years.
How Does New York Calculate Alimony?
In New York, alimony is typically determined using statutory guidelines and worksheets; however, courts have discretion over final alimony awards, with consideration to factors like:
- The length of marriage.
- Each spouse's ability to be self-supporting.
- The specific circumstances of the case and respective parties. This may include the number of minor children involved, the age and health of each spouse, their contributions to the marriage, and the standard of living established during the marriage.
Alimony payments may be modified if there has been a substantial change in circumstances, like retirement or financial hardship on the part of the payer. Alimony may also be terminated if the payer can prove that the receiving party (payee) is cohabiting, if the payee remarries, or if either spouse dies.
How Do I Access Historic Divorce Records in New York?
Individuals looking to verify their family history, genealogy researchers, and other interested parties can access historic divorce records in New York from July 1, 1847, to date from the office of the County Clerk where the divorce proceeding occurred. Records older than July 1, 1847, may also be accessed through the County Clerk or the New York State Archives.
