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New York Divorce FAQ 2

1) How do I file for divorce and do a I need a lawyer?

An action for divorce begins when either the husband or wife purchases an index number at the County Clerk’s office and files a Summons With Notice or Summons and Verified Complaint.

The person who starts the divorce is the plaintiff, and the other spouse is the defendant. After the action for divorce is started, the next step is to have the defendant personally served with an exact copy of the papers which were filed with the county clerk.

If your spouse either agrees to the divorce or fails to appear in the divorce action, and there are no disagreements over any financial or divorce related issues such as child custody, child support, division of marital property or spousal support, the action is uncontested. If your spouse doesn’t want to get divorced or you can’t agree on the other issues, the divorce is contested.

You may represent yourself in your divorce action or you can be represented by a lawyer. If you wish to represent yourself, there is a free uncontested divorce package available from the court. This package contains information about residency requirements, grounds for divorce, forms with instructions and a discussion of the pros and cons of representing yourself. You can obtain this package by picking one up at the court house or linking to the New York State Courts website.

2) How can I find out if my spouse has filed for divorce?

To find out if a divorce action has been started in a specific county in New York State, contact the County Clerk for the particular county. Usually the divorce action is filed in the county where at least one of the spouses lives, but it can be filed in any county. Before a divorce is signed, the plaintiff must submit proof that the defendant was served with a copy of the papers which started the action.

If you think your spouse may have started a divorce in another state, you would have to contact the courts in that state.

3) What do I do if I have been served with divorce papers?

You must decide if you wish to contest the divorce or not. If you were served with a Summons and Verified Complaint, you have twenty (20) days in which to answer. If you are served with a Summons With Notice, you can demand the complaint, and your time to answer is extended until 20 days after you are served with the Verified Complaint.

You may wish to consult with an attorney. If you need information about how to answer, contact the Office of the Self-Represented. If you do nothing, the divorce action can proceed without your input.

4) How do I know if my divorce was signed? How can I obtain a certified copy of my divorce or a copy of some other signed order?

If you are the plaintiff in an uncontested divorce, the postcard that was submitted with your papers will be sent out to you or your attorney after the judgment is signed and entered by the County Clerk. You can also check the status of your case online through e-courts.

Copies of divorce judgments or other orders in divorce cases are obtained form the County Clerk. Please note that divorce records are not open to public inspection and copies of documents can only be obtained by one of the parties or an attorney who is representing one of the parties.

If you know you were divorced in New York some time ago, but cannot remember in which county, you can try contacting the County Clerk of the county you were living in at the time of the divorce or the County Clerk in neighboring counties. If you are unsuccessful, you can also try getting a divorce certificate from the New York State Department of Health, which charges a fee for this service.

5) How do I get my case assigned to a judge?

If the divorce is uncontested or if the defendant has defaulted, the plaintiff must file a note of issue and related papers by submitting them to the Matrimonial Office with the required fee. There is a list of required papers available to assist you when filing an note of issue in an uncontested divorce.

If the case is contested, either the plaintiff or the defendant can file a request for preliminary conference.

If either the plaintiff or the defendant needs to have the court order some sort of interim relief while the case is pending, the request is made by filing a motion, either a notice of motion or an order to show cause. In a divorce case, some examples of interim relief include a request for temporary custody, visitation or child support, a request for an order of protection or a request for an order which prohibits the other side from selling or otherwise dispose of marital property. If one of the parties is making a motion, a preliminary conference will also be scheduled automatically.

6) What do I do if I started my case without a lawyer, but if I decide that if I really need a lawyer? What do I do if I have a lawyer, but want to represent myself or change lawyers?

If you want to hire a lawyer, you can go to courthelp for help in finding a lawyer or get a recommendation from friends or relatives who have gotten divorced. You should get someone who specializes in matrimonial law. Information as to a client’s rights and a client’s responsibilities is available on this website. Your new lawyer must file a notice of appearance with the court and notify the other side that he or she will be representing you.

If you decide to be represented by a lawyer, your lawyer will speak for you and will file all papers for you. If you decide to represent yourself, you will speak for yourself and file papers for yourself. You must either represent yourself or be represented by an attorney: you cannot do both.

If you have a lawyer and want to discharge him, you must do so in writing and also notify the court and the other side. If you wish to change lawyers, again it must be done in writing with notification of both the court and the other side. Usually these changes are made by the signing of a consent to change attorney.

If you have a lawyer and he or she wants to stop representing you, the lawyer usually must apply to the court for permission.

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