Facing a divorce is one of the most challenging experiences a person can go through. When you are filing in Buffalo, New York, your case will proceed through the New York State Supreme Court for Erie County. Understanding the process, from filing the initial paperwork to receiving the final judgment, can help alleviate stress and empower you to make informed decisions for your future.
Gary J. Wojtan offers compassionate legal guidance to help our clients navigate the complexities of New York’s matrimonial law with clarity and confidence.
What Are the Two Main Paths of Divorce?
In Buffalo, a divorce case will generally follow one of two paths: uncontested or contested. The path you take significantly impacts the timeline, cost, and overall stress of the proceedings.
1. Uncontested Divorce
An uncontested divorce is the most straightforward and cost-effective option. This occurs when both spouses are in complete agreement on all major issues related to the dissolution of the marriage, including:
- Equitable Distribution of marital property and debt.
- Child Custody and Visitation (if applicable).
- Child Support (if applicable).
- Spousal Maintenance (alimony/spousal support).
In an uncontested divorce, the parties typically execute a comprehensive Settlement Agreement (or Stipulation of Settlement) that memorializes all the agreed-upon terms. This process minimizes the need for court appearances and a trial, allowing the parties to retain control over the outcome.
2. Contested Divorce
A contested divorce arises when the spouses cannot reach an agreement on one or more of the key issues. In this scenario, the court must intervene, and the case will proceed through phases like discovery, negotiation, and potentially a trial, where a Supreme Court Justice will make the final, binding decisions on all disputed matters.
While more complex, a contested divorce allows a party to use legal tools like subpoenas to uncover financial information (e.g., in cases of suspected hidden assets) and to present evidence in court to support their position on issues like child custody. Gary J. Wojtan strives to resolve matters through skillful negotiation, but we are prepared to provide vigorous representation in the courtroom when a fair settlement cannot be reached.
Key Issues in a Buffalo, NY Divorce
When a divorce is contested, the following two areas are often the primary focus of negotiation and litigation.
How Marital Property is Divided
New York is an equitable distribution state. This means that property and debts acquired during the marriage, known as marital property, must be divided fairly, though not necessarily equally (50/50).
- Marital Property includes assets like the marital home, retirement accounts, pensions, and businesses acquired from the date of marriage until the commencement of the divorce action.
- Separate Property is property owned by either spouse before the marriage or received by one spouse as a gift or inheritance during the marriage. Separate property is generally exempt from distribution, but it must be proven.
When determining what is equitable, the court will consider several factors, including the length of the marriage, the income and property of each party, the noneconomic contributions of one spouse as a homemaker or parent, and whether one spouse wasted marital assets.
How Custody and Parenting Time are Decided
When minor children are involved, Buffalo courts prioritize the best interests of the child above all else. This determination is made based on numerous factors, including the quality of each parent’s home environment, the stability of the respective parents, and which parent has historically been the primary caregiver.
Two types of custody are decided:
- Legal Custody: Refers to the right and responsibility to make major decisions about the child’s health, education, and welfare. This is often awarded as Joint Legal Custody, requiring both parents to consult and agree.
- Physical Custody (or Residential Custody): Refers to where the child primarily lives. This can be Sole Physical Custody (with one parent) or Joint Physical Custody, though a true 50/50 shared arrangement is less common than one parent being designated the primary residential custodian.
The non-custodial parent is typically awarded Parenting Time (visitation) as outlined in a detailed schedule. Whether you are seeking a joint arrangement or sole custody, having a knowledgeable attorney to clearly present your case and advocate for your child’s well-being is critical.
The Step-by-Step Divorce Process in Erie County, NY
Regardless of whether your divorce is contested or uncontested, the court action is initiated in the Supreme Court for Erie County, New York, located in Buffalo.
Step 1: Meeting Residency Requirements
Before filing, at least one spouse must satisfy New York’s residency requirements. Generally, this means that either:
- At least one spouse has been a continuous resident of New York for two years prior to filing.
- Both spouses are New York residents at the time of filing, and the grounds for divorce occurred in New York.
- The marriage occurred in New York, or the couple lived in New York, and at least one spouse has been a continuous resident for one year before filing.
Step 2: Filing Initial Papers and Grounds for Divorce (The Commencement)
The divorce process officially begins when the Plaintiff (the filing spouse) files the initial documents with the Erie County Clerk’s Office. These documents include:
- Summons With Notice or Summons and Verified Complaint: This document formally notifies the other spouse (the Defendant) that a divorce action is starting.
- Notice of Automatic Orders: These orders immediately restrain both parties from transferring assets, incurring debt, or changing insurance coverage during the divorce.
- Payment of the Index Number Fee: A filing fee of $210 is required to receive an Index Number, which is the unique identifier for your case.
New York is a “no-fault” state, meaning most people cite “irretrievable breakdown” of the marriage for a period of at least six months as the grounds for divorce.
Step 3: Service of Process
After filing, the Plaintiff must arrange for someone other than themselves (a process server or an adult over 18) to personally deliver the filed papers to the Defendant. This is known as “service of process.”
An Affidavit of Service must then be filed with the court to legally prove that the Defendant was served in the correct manner. The Plaintiff generally has 120 days from filing the Summons to complete service.
Step 4: Defendant’s Response and Classifying the Divorce
Once served, the Defendant has a set period to respond. The nature of their response determines the path of the case:
- Uncontested: If the Defendant agrees to the terms and signs the necessary documents (like a Defendant’s Affidavit and Settlement Agreement), the process moves to final judgment.
- Contested: If the Defendant files a formal Answer opposing the divorce or disputes the terms (custody, property, etc.), the case becomes contested and enters the pretrial phases (e.g., discovery, depositions, mediation).
Step 5: Discovery, Negotiation, or Mediation
This is often the longest phase in a contested divorce.
- Discovery: The parties exchange financial documents and information to determine the value of marital assets and liabilities.
- Negotiation & Mediation: The attorneys for both parties will work to negotiate a settlement. Mediation involves a neutral third party helping the spouses communicate and reach a mutually acceptable agreement. Our firm is committed to exploring all options for a negotiated settlement to save you time and cost.
Step 6: Finalizing the Judgment
Once all issues are resolved, either through a Settlement Agreement (uncontested) or a court ruling after a trial (contested), the final paperwork is submitted to the Supreme Court Justice assigned to your case. The judge reviews and signs the Judgment of Divorce, which legally ends the marriage.
Frequently Asked Questions
Do I have to prove fault to get divorced in New York?
No. Most people file under no‑fault by stating the marriage has been irretrievably broken for at least six months. This avoids a trial over fault and keeps the focus on agreements about property and parenting.
How long do I need to live in New York before filing?
You must meet a residency requirement, which can be satisfied in several ways, such as living here for two years, for one year with certain New York connections to your marriage, or if both spouses live here and the grounds occurred here.
Will everything be split 50 50?
Not necessarily. New York uses equitable distribution, which means a fair division based on many factors, not an automatic 50‑50 split.
How is child support determined?
Courts apply CSSA percentages to combined parental income – 17% for one child, 25% for two, 29% for three, and so on, plus possible add‑ons for childcare and healthcare.
Your Next Step in the New York Divorce Process
Navigating a divorce requires not only legal knowledge but also a partner who understands the emotional and financial stakes. Gary J. Wojtan provides the experienced and caring representation you need to protect your interests in matters of equitable distribution, spousal maintenance, and child-related issues.
Whether you anticipate an amicable, uncontested process or a complex, contested legal battle, we are dedicated to achieving the best possible legal outcome for you. If you’re in Buffalo, we’re close by and ready to help. Reach out for a confidential consultation to discuss your goals, timelines, and options.