Starting an Action for Divorce: Part 1

For those struggling in their marriages and considering divorce, their first source of information often results from a basic internet search. “How do I start a divorce in New York” or “divorce lawyers in my area” are the most common places to start. A basic google search will turn up terms like “contested” and “uncontested” divorce, “summons,” “complaint” and “personal service.” It will pull up checklists and court websites. The results generally yield more information than can be easily digested in order to figure out how to do it on your own or who to choose to do it for you. Here are the basics regarding how to get a divorce matter started in New York. 

Put plain and simply, all divorce actions are started with the filing of a Summons with Notice or Summons and Verified Complaint. These documents may be prepared in advance by an attorney or litigant, or by using standard forms found at the courthouse. After preparing the required documents and paying the filing fee, the case will be assigned an index number, which acts as the case identifier. The date of filing triggers an official “cutoff date” or legal separation, for the purpose of identifying marital assets. 

The index number is affixed to the documents, which must then be “served” upon the spouse. Proper service is necessary to ensure that he or she was properly notified that a divorce has been filed, giving your spouse the right to respond and participate or default and allow the divorce to proceed in his or her absence. 

In New York State, a spouse must be personally served with the documents, which means he or she must receive them “in-hand” by someone other than the litigant, who is over the age of eighteen years old. The person who serves the spouse then needs to fill out an Affidavit of Service, which must be filed with the court as proof that service was effectuated properly. Limitations exist as to days of the week and physical locations that a person can be served. For example, service cannot be made on Sunday or in the courthouse where they are appearing for the matter. Service must be made within 120 days from the date that the initial documents were filed.

Serving your spouse may be very simple or extremely difficult, depending upon the specific circumstances. For parties who reside together, remain in contact or know each other’s daily schedule, it may be very easy to personally serve a party. For those who have been physically separated or out of touch for a long time, finding the right time and place to personally serve the person may prove to be more challenging. The more information a prospective client has regarding a parties’ location and schedule, the more efficient service of process will be. 

In order to help prospective clients save money and expedite the divorce process, I often suggest they contact their spouse for a “come to Jesus” talk. A direct conversation can help determine whether a spouse is willing to accept service, thereby avoiding the need for personal service. It may also help determine whether the matter can be filed as an “uncontested divorce,” where the parties can resolve the issues without the need for court intervention or if the process will be contentious, requiring the court’s involvement. 

Attempting a civil conversation may also tell you that a civil conversation simply isn’t possible. This is a sure fire sign that an uncontested divorce is improbable. In these situations, more likely than not, you will need an attorney to negotiate the terms of a settlement and possibly even a judge to make decisions where a resolution cannot be reached. This is considered a contested divorce. 

When a prospective client already knows that the matter will be contentious, it may not be advisable to attempt a conversation with his or her spouse. Giving the spouse a heads up that an action will be filed may cause the spouse to “evade” service, or avoid being personally served. While evading service serves no legitimate purpose, as there are alternate methods for service allowed by the court, it does cause delays and potentially drives up the cost of litigation. 

Knowing whether the matter will be contested or uncontested and whether personal service will be required or waived is some of the most important information you can share with a potential attorney in order for them to provide you with a realistic quote for legal fees. If you choose to navigate the process on your own, it will also be helpful for you to know whether you should be preparing the documents listed in the “uncontested divorce packet” or if you need more information about how to get in front of a judge. 

Keep an eye out for Part 2 of this blog post, which will address next steps after filing and service is complete. 

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.