The divorce process can be complicated to navigate, and every divorce is unique. New York allows for both no-fault and fault-based divorces; divorce can be contested or uncontested, and the process can go through litigation or stay out of court. This may cause some to wonder, “Does it matter who files for divorce first in NY?” There is no direct legal benefit to filing first. However, there are some personal and tactical benefits to filing first, particularly if you are filing on fault-based grounds.
Understanding the Basics of Filing for Divorce
When you begin the process of a divorce, you are called the petitioner. Your spouse is called the respondent. In some locations in New York, you and your spouse can file a joint divorce petition, meaning that there is no “first” spouse to file. In the state, spouses can file for a divorce on no-fault grounds, called an irretrievable breakdown of marriage, which has lasted at least six months. No-fault divorces may also follow a legal separation agreement or judgment of separation.
Spouses can also file for a fault-based divorce on the basis of:
- Cruel and inhuman treatment within the past five years
- Abandonment for one year or more
- Imprisonment for three or more years in a row
- Adultery
Even if you file on fault-based grounds, the family court treats both parties the same. However, filing first does give you certain advantages.
What Are the Advantages of Filing First?
If you are the petitioner in a divorce, there are several things you have more control over throughout the process. Some benefits include:
- -Court Jurisdiction: When you are the petitioner, you can choose where in the state or county to file your divorce. You must meet the state or county residency requirements, but there are situations where you have options. If you and your spouse live in different countries, you can make the process more convenient by filing close to home.
- -Emotional Preparation: When you file for divorce, you have more time to process your mental and emotional state for negotiations or litigation. If your spouse files for divorce, you may feel caught off guard and be unprepared for the filing deadlines.
- -Organizational Benefits: Knowing when and where you are filing for divorce also gives you time to get your finances in order and gather important documentation. This information is needed during the division of property, and it’s useful to have on hand. Gathering your finances also means that you can determine how you will pay for the expensive process of divorce. If you are filing on fault-based grounds, you can collect the evidence to support your claims.
- -Time to Contact Professionals: This includes a New York divorce attorney, financial and appraising professionals, and mental health professionals for you and your children. These individuals can make your life much easier and help the process be less stressful. In the case of attorneys, giving yourself time before you file first allows you to take time to pick the right attorney rather than picking a lawyer as a reaction to your spouse filing.
- -Presenting the Case to Court: A fault-based divorce goes to court, and a no-fault divorce could end up in court. When a case is litigated, the petitioner usually presents their information first. This can be beneficial or harmful, as you can give your information to the court first, but your spouse can also hear your side of the case prior to presenting their own.
FAQs
Q: Is It Better to Be the One Who Filed for Divorce?
A: If you are filing for a fault-based divorce, it is beneficial to be the first to file so you can present your evidence first. However, there is no direct legal benefit to being the first to file.
There are some benefits to filing first, even on no-fault grounds, including control over which county the divorce is filed in, if you qualify for multiple, and the ability to gather documentation and plan for the upcoming divorce. If a no-fault case goes to trial, the petitioner typically presents their case first, which can be a benefit or a drawback.
Q: What Is a Wife Entitled to in a Divorce in New York?
A: Both spouses have the same rights to property, support, and the support and custody of children, regardless of their gender.
Under New York’s equitable distribution laws, the assets and debts that a couple gained in their marriage are split equitably, not equally, if the court is responsible for the division of property. Spousal maintenance is not always awarded. In New York, it is determined based on the financial needs of a spouse and only lasts for a specific period of time, depending on the length of the marriage.
Q: Do Both Parties Have to Agree to a Divorce in New York?
A: No, both parties do not have to agree to a divorce in New York for the divorce to be finalized. If one spouse files for divorce, the other spouse can contest it. This is a contested divorce. A contested divorce can also be filed if spouses agree to get a divorce but do not agree on all aspects of their divorce settlement. A contested divorce can still be finalized, but it requires more time, money, and effort to resolve. If a spouse refuses to get a divorce by not engaging in the process, the filing spouse can get a default divorce.
Q: Can You Get a Divorce Without the Other Person Signing in New York?
A: Yes, you can get a divorce even if your spouse refuses to sign the divorce papers. Once you have served the papers, your spouse has 20 days to respond to the divorce petition or appear in court. This extends to 30 days if the papers had to be served out of court. Papers must be served in person by a third party. If you are unable to locate your spouse to have the papers served, the court may allow alternate service.
If your spouse does not appear after being served, the judge may go through with a default divorce, meaning that you are granted everything you asked for in the initial petition if your spouse does not attend the default hearing.
Divorce Attorneys in New York
When you need an experienced New York divorce attorney, contact the Law Offices of Robert Tsigler, PLLC. Our team can give you the diligent legal care you need.
