This page explains New York law on how a divorce case moves through the state Supreme Court, which has jurisdiction over divorce, from the residency rules in Domestic Relations Law 230 through the automatic orders and financial disclosure in DRL 236(B) and the court's matrimonial rule, 22 NYCRR 202.16. KOR Law LLP's family law practice handles contested and uncontested divorce proceedings, including division of marital property and equitable distribution, and family matters involving business interests.
Can you file in New York at all?
Only if a residency rule is met when the case is filed (DRL 230). One of these must apply:
- The spouses married in New York, and either spouse has lived in the state for the continuous year immediately before filing (DRL 230(1)).
- The spouses lived in New York as a married couple, and either spouse has lived in the state for the continuous year immediately before filing (230(2)).
- The ground for divorce arose in New York, and either spouse has lived in the state for at least the continuous year before filing (230(3)).
- The ground arose in New York, and both spouses live in the state when the case is filed (230(4)).
- Either spouse has lived in New York for at least the continuous two years before filing (230(5)).
Most divorces today use the no-fault ground: the relationship "has broken down irretrievably for a period of at least six months," stated under oath by one spouse (DRL 170(7)). The older fault grounds, such as cruel and inhuman treatment, abandonment for a year or more, and adultery, remain available (170(1) to (4)), as do conversion grounds based on living apart for six months under a separation judgment or a written separation agreement (170(5), (6)).
How does the case move, step by step?
- File the summons. The case begins by filing a summons with notice or a summons and verified complaint in Supreme Court (DRL 211). In New York County the index number fee is $210 and a request for judicial intervention is $95, according to the court's published fee schedule.
- Serve the other spouse within 120 days. Service must be made within 120 days after filing, or the court may dismiss or extend the time (CPLR 306-b). If the complaint is not served with the summons, the summons itself must say "Action for a divorce" and list the ancillary relief sought (DRL 232).
- Serve the automatic orders with the summons. They bind the filing spouse on filing and the other spouse on service (DRL 236(B)(2)(b)).
- Appear. The responding spouse appears by answer, notice of appearance or motion, generally within 20 days of personal service in New York or 30 days for other methods (CPLR 320(a)).
- Exchange sworn statements of net worth. Disclosure of finances is compulsory once maintenance or support is at issue (DRL 236(B)(4)(a)).
- Attend the preliminary conference. The court must hold it within 45 days after the case is assigned to a judge, and net worth statements and listed papers are due 10 days before (22 NYCRR 202.16(f)(1)).
- Finish discovery. Disclosure must be completed and the note of issue filed within six months from the conference, unless the court shortens or extends that time (202.16(f)(2)(iv)).
- Resolve the economic and custody issues. Under the no-fault ground, no judgment can be granted until property, maintenance, child support, counsel and expert fees, and custody and visitation are settled or decided by the court (DRL 170(7)).
- Get the judgment signed. Before judgment, both spouses must be told that health coverage under the other's plan may end (DRL 255). An uncontested case is placed on the calendar for judgment; in New York County that calendar number is $125.
What do the automatic orders forbid?
From filing (for the plaintiff) and service (for the defendant) until judgment, dismissal or further order, each spouse is bound by the automatic orders in DRL 236(B)(2)(b):
| Order | What it covers | Main exceptions |
|---|---|---|
| Property | No selling, transferring, hiding or disposing of property held by either spouse | Usual course of business, customary household expenses, reasonable attorney's fees |
| Retirement accounts | No withdrawals, transfers or applications for retirement benefits | Written consent or court order |
| Debt | No unreasonable new debt, including further borrowing against a home equity line | Usual course of business, household expenses, reasonable attorney's fees |
| Health insurance | No removing the other spouse or children from existing coverage | Court order |
| Other insurance | No changing life insurance beneficiaries; keep life, auto and home or renters policies in force | Court order |
| Notice duty | Written notice to the other spouse within 10 days of learning of a tax lien, foreclosure, bankruptcy or lawsuit that could affect the marital estate | None |
The orders can be changed by court order on motion or by a written, acknowledged agreement between the spouses (DRL 236(B)(2)(b)). For a spouse who owns a company, the "usual course of business" exception matters; how ownership interests are treated is covered in how a family business is divided in a New York divorce.
What happens at the preliminary conference?
The preliminary conference is where the case gets its shape. Papers exchanged beforehand include statements of net worth, which must also be filed with the court 10 days before the conference (22 NYCRR 202.16(f)(1)(i)). At the conference, the court addresses the issues in dispute, compliance with financial disclosure, the number and length of depositions and interrogatories, and a discovery timetable (202.16(f)(2)). Unless the parties agree or the court orders otherwise, interrogatories are limited to 25 including subparts and depositions to 7 hours (202.16(f)(2)(ii)).
At the close of the conference, the parties stipulate on the record or in writing to resolved issues, and list the unresolved issues of fault, custody and finance; issues not described then may not be raised later without good cause (202.16(f)(3)). In a noncomplex case, the court schedules trial within six months of the conference, and it may appoint an attorney for the children (202.16(f)(3)). The court also sets a valuation date for each asset as soon as practicable, anywhere from filing to trial (DRL 236(B)(4)(b)), which matters for any business or investment that moves in value; valuation methods are covered in how a business is valued for a buyout in New York.
What changes the answer?
- Whether the case is uncontested. If the spouses sign a settlement resolving every economic and custody issue, the no-fault judgment can follow without trial (DRL 170(7)).
- Children. Custody and child support must be resolved before judgment; support follows the formula in how child support is calculated in New York.
- Income gaps. Temporary maintenance can be sought while the case is pending; see how spousal maintenance is calculated in a New York divorce.
- Prior agreements. A written, acknowledged prenuptial or postnuptial agreement can govern property and maintenance (DRL 236(B)(3)).
- Residency. Without a qualifying residency rule, a New York court cannot grant the divorce (DRL 230).
- A default. A default judgment requires proof and compliance with the summons notice rules (DRL 211, 232).
For example: a two-income couple with one child
For example, imagine spouses who married in New York and have lived in Brooklyn for the past five years with one child. (This is a made-up illustration, not a real client or result.) One spouse files a summons with notice in Kings County Supreme Court on the no-fault ground and has it personally served with the automatic orders three weeks later, well inside the 120 days allowed (CPLR 306-b).
The other spouse appears through counsel within 20 days (CPLR 320(a)). Both serve sworn net worth statements, the case is assigned to a judge, and the preliminary conference is set within 45 days (22 NYCRR 202.16(f)(1)). At the conference, they agree on a parenting schedule but list maintenance and the division of a retirement account as unresolved. Discovery runs on a six-month timetable. They later sign a settlement covering the remaining issues, which allows the court to grant the judgment under DRL 170(7) after the health coverage notice in DRL 255 is confirmed.
Common mistakes
- Moving money after filing. Withdrawals and transfers outside the exceptions violate the automatic orders (DRL 236(B)(2)(b)).
- Missing the 120-day service window. The court may dismiss (CPLR 306-b).
- Incomplete net worth statements. They are sworn (DRL 236(B)(4)(a)), and a motion for temporary maintenance or child support will not be heard without one (22 NYCRR 202.16(k)(2)).
- Leaving issues off the conference record. Unlisted fault, custody or finance issues need good cause later (22 NYCRR 202.16(f)(3)).
- Assuming a no-fault divorce is quick. The judgment waits for every economic and custody issue (DRL 170(7)).
- Ignoring a summons. A default can lead to judgment, and undoing it is harder; see how to vacate a default judgment in New York.
What to do this week
- Confirm which residency rule in DRL 230 applies to you, with dates.
- Collect three years of tax returns, recent pay stubs, and bank, brokerage and retirement statements.
- List real estate, business interests, debts and insurance policies.
- Read the automatic orders before moving any money or changing any policy.
- Write down the current parenting schedule and the children's expenses.
- Find any prenuptial or postnuptial agreement and keep a copy safe.
- Speak with counsel before filing or responding.
Frequently asked questions
How long does a New York divorce take?
It depends on whether the spouses agree. The court rule sets a six-month target for discovery after the preliminary conference and, in a noncomplex case, a trial date within six months of the conference (22 NYCRR 202.16(f)(2)(iv), (f)(3)). A full settlement can shorten the timeline considerably.
Do I have to prove fault?
No. The irretrievable breakdown ground needs only one spouse's sworn statement that the relationship has broken down for at least six months (DRL 170(7)).
What if my spouse will not cooperate with financial disclosure?
Disclosure is compulsory, and a sworn net worth statement is due within 20 days of a written demand (DRL 236(B)(4)(a)). The court can order compliance and, under its rule, sets disclosure deadlines at the preliminary conference (22 NYCRR 202.16(f)).
Can custody be changed after the divorce?
Yes, on a proper showing; the standard is covered in how to change a custody order in New York.
What if Child Protective Services is involved during the divorce?
A Family Court proceeding can run alongside the divorce and affect custody; see what happens after Child Protective Services opens an investigation in New York.
Is a separation agreement the same as a divorce?
No. Spouses who live apart for six months under a written, acknowledged separation agreement, and who have substantially performed it, can then use it as a ground for divorce (DRL 170(6)).