Going through a divorce can be a tricky process, and every step of the way can be confusing. Asset calculations, document handling, and trying to contact your spouse can all create a very sticky legal situation that seems impossible to escape. Fortunately, with the right Rochester divorce lawyer’s guidance, as well as knowledge of the process, the more intricate aspects of a divorce filing can be made simple. Here are the most important steps for filing for a divorce and how you can ensure that the process is all-around less stressful and easier to handle.
One of the most important parts of filing for a divorce is ensuring that your status as a New York resident is updated, valid, and properly filed with the state. Residency and legal addresses are important for any legal filing, but they are crucial for divorce proceedings. To file for a divorce, you and your spouse must have been married in New York State, with at least one of you living in the state for at least a year. The grounds for your divorce must have also happened during your time married together as residents of New York.
New York is considered a no-fault divorce state, meaning that your reasoning for filing a divorce does not need to be based on any sort of malicious intent and the natural falling out that can occur between a married couple, as long as it happened for at least six months, is enough to file. Besides a no-fault divorce, filing on grounds relating to “cruel treatment,” like abuse or domestic violence, abandonment of at least one year, adultery, or at least three years of imprisonment of a spouse after the marriage can be grounds for divorce.
Concerning separation, if both you and your spouse sign a separation agreement and live apart for at least a year, this can be used as the grounds for your divorce. Separation agreements can be either court-enforced or agreed upon by you and your spouse.
For an uncontested divorce, which is when either you and your spouse both outline the terms of your separation, or if your spouse does not respond to your divorce petition, you can continue with filing. Provide a copy of your legal name, address, marriage license, agreed-upon settlement terms with your spouse, any joint assets you and your spouse own together or separately, and any applicable protection orders before filing. For a faster, more streamlined process, an uncontested divorce can help limit the hostility between you and your partner while outlining key procedures that would traditionally be argued in court.
Depending on whether you have children, you may have to fill out supplementary paperwork. For those with children under 21, you must file an Uncontested Divorce Packet with the state before continuing with your proceedings. For those married for at least six months who do not have shared children, you are required to use New York’s DIY Uncontested Divorce Program for filing. After finishing these forms, the next step in the process is filing a summons form and a complaint form, either with your County Clerk’s Office or with New York’s NYSCEF e-filing system.
Making your spouse aware of your divorce filing and giving them time to respond to any stipulations they do not agree with is crucial for moving forward with the process. Handing them the papers, in a process commonly referred to as “serving,” ensures that your spouse has a copy of the necessary documentation for your divorce proceedings, but these papers must be delivered by a third party. From the filing date, you have 120 days to find someone to serve the divorce papers.
After serving your spouse these divorce papers, they must return the papers, signed and completed, within 40 days of receiving the files. If your spouse does not respond in this time frame, your divorce is considered defaulted, and the agreements outlined in your initial filing will be granted to you once your case is negotiated and settled in court. In that 40-day window, however, your spouse reserves the right to object to any of the terms you previously outlined, turning your divorce into a contested divorce.
Depending on if your divorce is still uncontested, you can communicate with your spouse about setting a court date or set one yourself if your divorce has defaulted. After filling out any remaining forms, you can file them with a clerk and settle your divorce. If contested, the next step towards proceeding with your filing is taking your case to court with your spouse. That way, any contested terms and agreements can be settled. This is the part of the process that leads to the most hostility; however, with a competent legal team, this process can be simple and painless.
For contested cases, things like child custody, visitation, asset division, spousal maintenance, and child support are all outlined and discussed by the court. Understanding why certain stipulations are contested, as well as what clauses need to be reevaluated, is key to ensuring a speedy trial. Accompanied by a legal team, this part of the divorce process can help ensure that all terms of your divorce are agreed upon and properly enforced, with consideration of any attributes outlined by both you and your spouse.
Divorce is not easy, so finding the right legal team to help guide you through the process is crucial for a speedy trial. From document filing to serving papers, having the help of a family law legal team on your side can make the divorce process less stressful. Movies and T.V. tend to exaggerate divorce filings, making a heated court debate seem like an expectation anyone filing for a divorce should have before their court appearance, but in reality, this is nowhere near the truth. Before filing for a divorce, contacting an attorney well-versed in divorce law is key to a productive divorce hearing.
Contact us today using our consultation form below: