Divorce

A contested divorce is when your spouse disagrees with anything in the case, including the divorce itself, the property division, child custody, or financial support. A contested divorce is more complicated than an uncontested divorce. It is always best to have an attorney assist you with a contested divorce.

The NY Courts website lists a schedule of fees for initial divorce filings in on page 5 of their divorce packet.  For an uncontested divorce, the inital court filings may represent the majority of the cost.  However, for contested divorces, where motions are commonly filed, experts may be ordered to do evaluations, and a lawyer is usually required, the costs can increase greatly.

If you cannot afford the filing fees, you may file an application to proceed as a poor person.  Here, for example, is an affidavit that would be filed when asking to have the fees waived (in other words, to “proceed as a poor person.”)  The clerk’s office can tell you exactly what forms to file.  If you qualify, you will not have to pay the fees.

Attorneys usually charge an hourly rate, ranging from $175 to $450 or possibly even more, depending on experience. They usually require an advance retainer, which is an initial deposit against which you are billed.  You might be able to get an attorney for no cost through our NY Finding a Lawyer page or, if you are low-income, you may be able to get an attorney appointed for you by the court to handle custody and visitation matters.¹

However, if you cannot afford to pay for an attorney, there is a law that may help if your spouse earns/has more money than you do. The law says that the judge can order the spouse who has more money to pay the lower-income spouse’s attorney’s fees and the fees and expenses of experts (such as a forensic psychologist) if this is necessary for you to be adequately represented in the divorce.  The judge will assume that the richer spouse should pay the poorer spouse’s attorney fees although the richer spouse can try to change the judge’s mind and offer evidence to show why this should not be done.  The money would be paid during the divorce (not at the end) to your attorney directly.²  This law also applies to a court case you may have to later bring to enforce any part of the divorce or custody order that the other spouse is violating.³

¹ NY Judiciary Law § 35(8)
² NY Dom. Rel. Law § 237(a)
³ NY Dom. Rel. Law § 237(b)

Step 1: Grounds
You must first have a legally acceptable reason (grounds) to ask for a divorce. For more information, please see What are the grounds for divorce?

Step 2: Fill out and file the proper forms and pay the fee
For an uncontested divorce, you will need the Uniform Uncontested Divorce Packet. There are links to these forms on our Download Court Forms page. There are also more instructions on the NY State Courts website. Many of the forms can be very complicated, however, and we suggest having the help of an attorney. If you are filling out forms on your own, you can ask the court to keep your address confidential if your spouse has abused you. Be sure to ask the clerk for help with this, and do not put your address on any of these forms. If you expect or know that the divorce is going to be contested, an attorney is especially important to make sure that your legal rights are protected.

You will also have to pay certain fees to file for the divorce. If you cannot afford it, you can ask the clerk for an Application for Fee Waiver. This is also called “poor person’s relief,” and, if you qualify, you may not have to pay the fees.

Step 3: Service of Process
Your spouse must be personally served with a copy of all the necessary papers.  Be sure to clarify with the clerk what exactly needs to be served upon your spouse. There are also specific requirements for who can serve the papers. This means that a person other than you, who is a New York resident, age 18 or older, must personally give your spouse the papers. The server may be a friend, family member, or professional process server. Summonses may be served Mondays through Saturdays, but there is no service of process on Sundays.

If your spouse lives in another state, you will need to follow the rules of that state for service to be valid. Call the local sheriff to find out how to have the papers served in that state.

You can find more information about service of process in our Preparing for Court – By Yourself section, in the question called What is service of process and how do I accomplish it?

Step 4: In an uncontested divorce, you may receive the Affirmation of Defendant (Form UD-7)
What happens next depends on whether your spouse agrees to the divorce and is willing to cooperate.

• If your spouse agrees to the divorce, they need to sign the Affirmation of Defendant (Form UD-7) and return it to you. If they do this, you can proceed immediately to Step 5 below to place the case upon the court’s calendar without any additional waiting period.
• If your spouse will not complete and return the Affirmation of Defendant, then whoever served them with the papers must prepare an Affirmation of Service (Form UD-3), proving that your spouse received copies of the divorce paperwork. If you were married in a religious ceremony, you must also fill out a copy of the Sworn Statement of Removal of Barriers to Remarriage (Form UD-4) and someone other than you, over the age of 18, must send a copy of it to your spouse either by personal service along with the Summons With Notice or the Summons and Verified Complaint, or by mail. Check with the clerk to see what other forms, if any, also need to be mailed to your spouse.
• If your spouse files a Notice of Appearance disagreeing with anything in the papers, then this is no longer an uncontested divorce, and instead it will be considered contested. You may want to consult an attorney immediately if this happens.

Step 5: Place your divorce case on the court calendar, possibly appear in court multiple times, and get the judgment for divorce
The forms that you need to file to get your divorce on the court’s calendar and in front of a judge will be different depending on whether your spouse signed the Affirmation of Defendant (Form UD-7) or a Notice of Appearance. Multiple forms need to be filed, and we suggest having the help of an attorney to make sure everything is done properly.

The time it takes to get the judgment of divorce will be different if you are filing an uncontested or contested divorce. For contested divorces, there will be multiple court appearances, hearings, and possibly a trial, which could all take many months or even years. For uncontested divorces, you can be granted a judgment of divorce without appearing in court. However, there could still be a significant wait depending on how busy the court’s calendar is. If your spouse returned a signed Affirmation of Defendant, you can file your papers immediately to place the uncontested divorce on the court’s calendar. If your spouse does not respond to the papers you served on them (defaults), you must wait 40 days to file the papers and place the case on the court’s calendar.

Note: If you are served with divorce papers by your spouse but you do not agree with the terms that your spouse is asking for in the divorce, you can contest the divorce by filing a Notice of Appearance in court within 20 days of being served with the divorce papers or by hiring a lawyer to do so for you. The Notice of Appearance tells the court that you plan to participate in the divorce proceedings.¹

¹ Much of this information was adapted from the NY Courts website divorce packet. Please read the packet for additional information.