Filing a Divorce Action

The first thing that you must do to begin a divorce action is serve your spouse with either: (1) a summons with a complaint for divorce; or (2) a summons with a notice of the divorce action.  “Serve” usually means the summons is personally delivered to your spouse and the delivery is formally documented. If personal delivery is impossible, the court may allow another form of service. After your spouse is served, you file both the summons and the proof of service in court.

Even if you do not know where your spouse is living, you can file for divorce if you have tried to find your spouse but you were unsuccessful. Your lawyer can ask the court for permission to post a legal notice of the divorce action in a newspaper. If your spouse does not come forward, the court may allow you to obtain your divorce by default.

If you are filing for an uncontested divorce then serving your spouse is easy, since he or she is cooperating. You and your spouse may even have already signed a stipulation of settlement containing the detailed terms of your divorce.

In order to file for divorce in New York, at least one of the following five residency conditions must be satisfied:

  • At least one spouse has lived in New York State continuously for the previous 24 months.
  • Your marriage ceremony was performed in New York State and at least one spouse has lived in New York State continuously for the previous 12 months and is still living in New York State when the action for divorce is filed in court.
  • You and your spouse have lived together in New York State as married persons and at least one spouse has lived in New York State continuously for the previous 12 months and is still living in New York State when the action for divorce is filed in court.
  • The reason for the divorce (legal grounds) occurred in New York State and at least one spouse has lived in New York State continuously for the previous 12 months.
  • The reason for the divorce (legal grounds) occurred in New York State and you and your spouse are both residents of New York State when the action for divorce is filed in court.

Legal Editor:  Charlotte Lee, April 2015

Changes may occur in this area of law. The information provided is brought to you as a public service with the help and assistance of volunteer legal editors, and is intended to help you better understand the law in general. It is not intended to be legal advice regarding your particular problem or to substitute for the advice of a lawyer.

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