Divorce in New York when your spouse won't sign

A lot of people stay married on paper for years because they think they need their spouse's signature. In New York, you don't. If your spouse is properly served and doesn't respond, the case can go forward without them. This is called a divorce on default.

Who this is for

• Your spouse won't sign, keeps promising and never does, or has stopped answering you.
• You and your spouse have no children under 21 together.
• You're not asking the court to divide property, award support, or decide other money issues, or you've already worked those out.
• At least one of you meets New York's residency rules (more on that below).

If your spouse fights the divorce by filing an "Answer," it becomes contested and you should speak with a lawyer.

How a default divorce works, step by step

1. File the Summons with Notice (or Summons and Complaint) with the County Clerk and buy an index number ($210).
2. Have your spouse served in person by someone 18 or older who is not you. A friend, relative or professional process server can do it. Service must happen within 120 days of filing.
3. Wait. Your spouse has 20 days to respond if served in New York, or 30 days if served outside New York. In practice, you wait 40 days after service before filing the rest of your papers.
4. File the final papers (affidavits, proposed judgment, Note of Issue and more) and pay the $125 Note of Issue fee.
5. The judge reviews the paperwork. Most uncontested divorces are decided on the papers, with no court appearance. Your Judgment of Divorce comes when the judge signs.

What if I can't find my spouse at all?

If you truly can't locate them after a real search, the court can allow "alternative service," such as by email, text, social media or publication. You have to ask the court for permission first and show what you did to find them. Keep a record of every attempt (old addresses, phone numbers, social media, family contacts).

Residency rules, in plain language

You can file in New York if one of these is true:

• Either spouse has lived in New York for 2 years in a row right before filing; or
• Either spouse has lived in New York for 1 year in a row, and you married in New York, or lived here as a married couple, or the reason for the divorce happened here; or
• Both of you live in New York on the day you file, and the reason for the divorce happened here.

The most common mistakes

• Serving the papers yourself. You can't.
• Filing the final papers too early, before the 40 days have passed.
• Getting the affidavit of service wrong or missing details.
• Using an old form version. Always use the current court forms.

Your options

• Do it yourself with the free forms at nycourts.gov/divorce.
• Use a document preparation service that fills in the forms for you, including the default-path papers.
• Hire a lawyer if there are children, property, support issues, domestic violence, or your spouse is fighting it.

Court fees and rules can change. Check nycourts.gov/divorce before you file.