New York Divorce: Does It Make a Difference Who Files First?
Generally, it does not make a difference whether a spouse is a plaintiff or defendant in a New York divorce case. Some people mistakenly believe that the plaintiff, or person that brings the complaint first, gets to “set the rules.” However, the fair principles that a New York judge uses to decide a case are not weighed in favor of either party.
Allegations are proven or rebutted in New York using a “more likely than not” standard, and a number of fairness factors are equally applied to both parties. For example, in determining child support payments, a judge considers a number of factors including current earnings, earnings ability, education, and so on. The ability of the plaintiff to speak first at hearings, although it may seem an advantage, will not really affect the judge’s final decision.
That saying, if the couple is already separated and living in different counties of New York, the case will be decided in the Supreme Court sitting in the county filed. It may be of great inconvenience to one party to have to travel back and forth to the forum.
However, because of differences in state law, a person filing in a different state can take advantage of laws favoring their situation. For example, child support payment guidelines may differ in a neighboring state. Of course, there are residency requirements. Generally, one spouse must have resided in New York for more than 1 year.
New York is the only state left where one must prove the “fault” of the other spouse. This does not bode well for a spouse who wants to get a divorce based solely on “irreconcilable differences,” i.e., he or she is “sick of” the other person. In such a case, the divorcing spouse may choose to move out of New York to another state to be the first to file for divorce from there.
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Last Modified: 05-29-2012 03:52 PM PDT
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