A divorce is the legal termination of a marriage between two people, called spouses. Once the divorce is completed, the people can remarry other people should they choose to do so.
In the United States, each state requires the person filing for divorce to be a resident of the state they are filing. The requirements for residency may vary but usually require the individual filing to reside in the state between 6 months and one year.
In New York, married couples can file for a legal separation. A legal separation provides individuals with an alternative to filing for a divorce when the spouses no longer want to live together.
The bulk of the issues in a divorce can also be settled in a legal separation. The legal separation process does not dissolve the marriage, and the parties stay married. Therefore, they cannot legally marry other people.
In New York, spouses can obtain a legal separation by a written agreement made by the parties or by requesting a judgment of legal separation from the court. If the couple is legally separated for over one year, that would be deemed legal grounds for a divorce.
New York is a no-fault divorce state. The Supreme Court of New York is the only court in the state that handles divorce cases.
Supreme court judges are the only people who can legally grant divorces. People wishing to file for a divorce in New York should go to the Supreme Court in the county they now reside.
Even if an individual files an uncontested divorce, the process is still complicated in New York. The first form an individual will need to complete is the Summons with Notice (Form UD-1) and a Verified Complaint (Form UD-2).
The summons is the form that starts the divorce process and names the spouses as plaintiff and defendant. These forms require the individual filing to provide a substantial amount of information.
After filling out the forms, the individual filing must take two additional copies to the Clerk’s Office and file those. The Clerk will provide the person with an Index Number and a filing date. The individual will be required to pay a filing fee to receive an Index Number.
The individual filing is then required to serve the summons and complaint on the other spouse. This must be done within 120 days after the filing date.
In the state of New York, the procedure for same-sex divorce in New York is treated the same as the traditional divorce procedure. If you either entered into a same-sex marriage in New York or entered into a same-sex marriage in another state but are a resident of New York, you can file for divorce in New York. The only requirements are that when a same-sex couple decides to separate, they must file divorce papers and establish the terms of their separation.
Before same-sex couples can divorce in New York, they must (1) meet the residency requirement and (2) have a “ground” for divorce. New York became a no-fault divorce state in 2010 but still has some of the grounds for divorce that include:
If you plan to file for a same-sex divorce due to irreconcilable differences, you and your spouse must have lived separately for at least one year before filing. You also need to have a legal separation agreement. If you are alleging one spouse is at fault for the divorce, then there is no waiting period, provided you can demonstrate that the spouse is at fault. For example, you must demonstrate that the spouse physically abused you.
You will need to file a Summons with Notice that places your spouse on notice that you are starting the divorce action and sets forth the grounds which your action for divorce is seeking. You also need to file a complaint that sets forth the details concerning the marriage and your alleging grounds.
The Complaint is usually filed with the Summons, but they can be filed separately. Once you have all the forms filed with the Supreme Court of the State of New York, you will need to serve your spouse to give them notice of the divorce proceedings. Once your spouse receives the Notice of the divorce proceedings, they have 20 days to file an Answer with the court to agree or contradict what you say in the divorce Complaint. You will know if your spouse filed an Answer to the Complain because they have to mail a copy to you.
All same-sex couples must meet at least one residency requirement to be eligible to file for a same-sex divorce in New York:
If you satisfy one of the above prerequisites, you may file for a same-sex divorce. There are two types of divorce: contested divorce and uncontested divorce. A couple may file for a same-sex uncontested divorce when there is no marital property or child support/child custody matters for the court to handle. This may be because no marital property or kids exist, or this may be because the couple entered into a marital property agreement or child custody and support agreement.
A couple may file for a same-sex contested divorce when one spouse alleges the other is at fault or if there are unresolved problems related to the children or marital property.
While state laws may afford same-sex couples the same rights to divorce as opposite-sex couples, state and federal law interactions complicate the issue. The IRS announced that it would recognize same-sex marriages as married for federal tax purposes.
However, the couple’s state may not recognize the marriage and could require each spouse to file separately.
In 2013, the Supreme Court overturned the Defense of Marriage Act (DOMA), authorizing same-sex couples to receive federal benefits, including social security benefits and federal tax benefits.
This includes provisions governing:
While same-sex divorce is identical under New York law to traditional divorce, this does not mean it is an uncomplicated process. Divorce, in general, is extremely complicated, and divorce litigation can be prolonged and emotionally exhausting.
If you are interested in filing for a same-sex divorce in New York, you need to discuss your case with a New York family lawyer. A New York family attorney can advise you on New York divorce law, evaluate your options, and help you protect your interests in your property and children.
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