FILING AN UNCONTESTED DIVORCE IN NEW YORK COUNTY
A. Commencement of an Action
First you must determine if you satisfy the residency requirements to file for divorce in NewYork. Once residency is established you commence the action by filing a Simmons and complaint or summons with notice A summons and complaint or summons with notice, must be filed with the County Clerk. (In New York County, this is Room 141B). Compliance with Rule 130-1.1 of the Rules of the Chief Administrator is required. In order properly to file, the plaintiff must fill out a cover sheet and an index number purchase form; purchase an index number (cost $ 210); fill the index number in on the summons and the complaint or the summons with notice and add the date the index number was purchased. Plaintiff will file one set of the summons and complaint or summons with notice with the Clerk. One set of these papers will be served on the defendant and the original papers will later be filed with the Matrimonial Support Office (Room 311).
The plaintiff must cause the summons and complaint or summons with notice to be served within 120 days of the date the summons and complaint were filed in the County Clerk’s Office. Failure to serve the defendant on time can result in dismissal upon motion. See CPLR 306-b.
If the defendant defaults, a default judgment of divorce may be obtained. The defendant must appear or answer within 20 days of being served (30 days if service is made outside the state).
The vast majority (by a factor of roughly 15 to one) of the judgments of divorce granted in New York County are uncontested. That is, either the other spouse consents to the divorce or defaults and does not contest the lawsuit. If the defendant signs a Defendant's Affidavit of Consent providing for immediate placement on the calendar or waiving all applicable time periods, the plaintiff may proceed to place the case on the calendar for action by the court immediately after service of the summons and complaint. If such a consent has not been signed, then the plaintiff must wait 40 days after the date of such service.
B. Pursuing a Judgment
In order to obtain an uncontested divorce, the plaintiff must present the following, properly notarized when required, to the Matrimonial Support Office (Room 311):
1) Request for Judicial Intervention: Previously none was required, but one is required now (Uniform Rule 202.6 (b)), although there is no associated fee payable and the case in fact will not be assigned to an IAS Justice.
2) Note of Issue: An original and two copies with proof of index number purchase.
3) Summons and Verified Complaint, or Summons with Notice, with Proof of Service or Defendant's Waiver : A verified complaint must be filed in all cases, even those commenced by summons with notice.
4) Affidavit of Regularity: By plaintiff. States that defendant has consented to placement on the calendar, or shows the manner of service and claims a default after the proper time has elapsed, relying on the third-party affidavit of service.
5) Affidavit as to Military Status: This document, which states that the defendant is not in the military service, is unnecessary in cases where the defendant has signed a consent to the divorce.
6) Plaintiff's Affidavit: This must establish all the elements of the plaintiff's case to justify the relief requested.
7) Affidavit of Child's Residence: Required when there are children under the age of 18, but advisable in all cases. This information can be included in Item 5.
8) Child Support Worksheet: Nnecessary when there is a child of the marriage under 21.
9) Sworn Statement as to Barriers to Remarriage (With Proof of Service): Necessary only when the marriage had been performed in a religious ceremony or one conducted by the Ethical Culture Society. When the ground for divorce is DRL § 170(5) or (6) (separation decree or separation agreement), the defendant has made a general appearance (signed the Affidavit of Defendant or appeared by an attorney) and the marriage was performed in a religious ceremony, then both parties must execute the Removal of Barriers Affidavit or one party must execute and serve the Affidavit and waive reciprocal performance by the other.
10) Proposed Findings of Fact and Conclusions of Law: A proposed decision submitted to the court for its consideration and possible execution.
11) Proposed Judgment: A proposed form of the document that formally ends the marriage and resolves all issues between the parties.
12) Postcard: A stamped, self-addressed postcard containing the title of the action and the calendar and index numbers; used to notify the plaintiff of the status of the case.
13) Part 130 Certification
14) Certificate of Dissolution: Certificate reflecting dissolution.
15) UCS - 111 (Divorce and Child Support Summary Form): Form required only if there is child support involved (children under 21).
16) Notice of Entry
17) New York State Case Registry Filing Form: Only if there are children under 21.
18) Proof of Service of Automatic Orders - DRL 236
19) Proof of Awareness of Health Coverage - DRL 255
These forms can be found on the Unified Court System’s web site (at http://www.nycourts.gov/divorce/divorce_withchildrenunder21.shtml).
The Clerk of the Matrimonial Support Office reviews these papers for form. If the papers are found satisfactory, the filer can place the case on the court's calendar. The applicant brings the papers to the Cashier in the County Clerk’s Office for purchase of a calendar number (cost $ 125).
The papers will then be presented by the Clerk in the Matrimonial Support Office to a Justice or a Court Attorney-Referee for consideration. Cases proceed in calendar number order and are assigned in strict rotation to the next open Justice or Referee.
In some cases, a hearing may be required depending upon the circumstances revealed in the papers submitted. On occasion, the court may find that a divorce cannot be granted under the law of this State and may dismiss the action. Should the court find instances of fraud, such as apparently fraudulent signatures, further action will be taken, which may include referral of the matter to the New York County District Attorney. Signed judgments are sent to the County Clerk's Office to be entered in the minutes and placed in the permanent file in the Record Room. The defective cases are retained in Room 311. The self-addressed postcard (see above) is sent to the attorney or filer advising that the papers have been signed or are defective
When defective papers are corrected (and a new postcard is submitted for notification purposes), the papers are resubmitted to the Judge or Court Attorney-Referee who had previously been assigned the case.
Every 30-60 days, a "Mark Off Calendar" is created. Cases that have been found defective, are more than six months old and have had no activity in the last thirty days are placed on the calendar to be marked off by a Referee. An attorney or filer may restore a marked off case within one year by compliance with a procedure sheet supplied by the Matrimonial Office. After one year, the matter is deemed to have been dismissed. CPLR § 3404.
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