A contested divorce in New York is a case where you and your spouse cannot agree on one or more major issues (property, support, custody, or the divorce itself) and a judge has to decide those issues after discovery and, if no settlement is reached, a trial. Most contested cases run 12 to 18 months from filing to final judgment, with complex disputes over business valuations, hidden assets, or bitter custody fights routinely pushing past two years. They also cost significantly more than uncontested divorces because attorney hours, expert witnesses, and court appearances all multiply with each unresolved issue.
What Makes a Divorce Contested
A divorce is contested the moment you and your spouse disagree on any issue the court has to decide. That can mean disagreement on the divorce itself, but more often it means agreement to divorce paired with a fight over how to split property, how much maintenance is fair, or where the children will live. Every unresolved issue requires evidence, argument, and a judicial finding, which is what drives the timeline and expense.
Attorney fees make up the bulk of the cost. New York divorce attorneys bill hourly, and rates vary with experience and location. On top of that, expect court filing fees, potential expert witnesses for property valuations or custody evaluations, and forensic accountants if one spouse suspects the other of hiding income. Court backlogs in New York City and surrounding counties add months to the calendar. Budget realistically at the outset; surprises midway through a case are much worse than a clear-eyed estimate up front.
Grounds and Residency: What You Need Before You File
Two threshold requirements decide whether a New York court can hear your case at all: you need a legal ground for divorce, and you or your spouse must satisfy the residency rule.
The dominant ground is no-fault: you swear under oath that the marriage has broken down irretrievably for at least six months. Fault grounds are still available (cruel and inhuman treatment, abandonment for one year or more, imprisonment for three or more consecutive years after the marriage, and adultery), but each requires proof, and pursuing them essentially creates a mini-trial over blame before the court can address property and custody. Most contested cases proceed on the no-fault ground even when misconduct exists, because the fault fight rarely changes the ultimate distribution.1New York State Senate. New York Domestic Relations Code 170 – Action for Divorce
On residency, the default is that either spouse has lived in New York continuously for two years before filing. That drops to one year if you married in New York, lived together as a married couple in New York, or the events leading to the divorce happened in New York.2New York Courts. Residency and Grounds If neither spouse clears one of these thresholds, a New York court will refuse the case and you would need to file in a state where at least one of you qualifies.
Filing and Serving the Papers
To start the case, you file a Summons with Notice or a Summons and Verified Complaint with the County Clerk. You pay a $210 fee to purchase an index number, which is the case’s unique tracking identifier. The date you buy that index number is the official start date of the divorce action.
You then have 120 days to serve your spouse. Service must be made in person by someone at least 18 years old who is not a party to the case. New York prohibits service on Sundays entirely, and any papers served on a Sunday are void.3New York State Senate. New York General Business Code 11 – Serving Civil Process on Sunday The person who delivers the papers completes an Affidavit of Service describing the date, time, place, and appearance of the person served. You file that affidavit with the court to prove your spouse received notice. Miss the 120-day deadline without good cause and the court can dismiss the case on your spouse’s motion.4New York State Unified Court System. How to Serve Papers When Commencing an Action or Proceeding
Automatic Orders Take Effect at Filing
This is the part most people miss, and violating it can wreck your position in the case. The moment you file the Summons, a set of automatic court orders binds you. Once your spouse is served, the same orders bind them. The orders stay in place until the final judgment or dismissal.5New York State Senate. New York Domestic Relations Code 236 – Special Controlling Provisions
While the case is pending, neither spouse may:
- Sell, transfer, hide, or dispose of property (real estate, bank accounts, investments, vehicles) outside of normal household expenses or attorney fees
- Withdraw from or cash out retirement accounts, 401(k) plans, IRAs, pensions, or profit-sharing plans
- Run up unreasonable debt, including borrowing against home equity or making excessive credit card charges
- Remove the other spouse or the children from existing health, dental, or hospital insurance
- Change beneficiaries on life, auto, homeowners, or renters insurance
Violations can trigger sanctions, contempt findings, and a very unfavorable impression on the judge who will later decide the case. If you receive notice of a tax lien, foreclosure, or bankruptcy that could affect marital assets, you must notify your spouse in writing within ten days.6New York State Unified Court System. Notice of Entry of Automatic Orders – DRL 236
If Your Spouse Doesn’t Respond
Once served, your spouse has 20 days to answer, or 30 days if served by certain alternative methods. Silence puts them in default. You then have one year to move for a default judgment, and if you sit on that too, the court can dismiss your entire case as abandoned.7New York State Senate. New York Civil Practice Law and Rules 3215 – Default Judgment
A default does not mean you automatically get everything you asked for. The court still requires proof of your claims on property division, custody, and support. The judge cannot rubber-stamp a request without evidence that the proposed terms are legally sound. Default removes the opposing argument; it does not remove the court’s scrutiny.
Discovery, Settlement Conferences, and Trial
When your spouse answers, the case enters active litigation. Either side can file a Request for Judicial Intervention (RJI), which costs $95 and prompts the court to assign a judge.8New York Courts. New York County Supreme Court, Civil Term Fees The assigned judge holds a Preliminary Conference and sets deadlines for exchanging documents, completing depositions, and attending settlement conferences.
Both spouses must exchange sworn Net Worth Statements disclosing all income, assets, expenses, and liabilities. New York law requires this financial disclosure in every case where maintenance or support is at issue, without any special showing.5New York State Senate. New York Domestic Relations Code 236 – Special Controlling Provisions The statements must be backed by documentation such as tax returns and pay records. Discovery typically also includes interrogatories, requests for documents like business records or loan applications, and depositions on the record. If a spouse hides assets or lies on disclosures, the court has broad power to impose penalties.
Judges push hard for settlement. Most courts schedule multiple settlement conferences before letting a case proceed to trial, and many contested cases resolve at this stage once both sides see the evidence stacked against them. If no agreement is reached, the plaintiff files a Note of Issue to put the case on the trial calendar; because the RJI has already been paid, the Note of Issue fee is $30.8New York Courts. New York County Supreme Court, Civil Term Fees At trial, both sides present testimony, introduce documents, and make legal arguments. The judge issues written findings on every contested issue and enters the final judgment. There is no jury in a New York divorce trial.
Temporary Orders While the Case Is Pending
A contested divorce can run well over a year, and people need money, housing, and stability while it grinds along. Either spouse can ask the court for pendente lite relief covering temporary maintenance, temporary child support, exclusive use of the marital home, and interim custody or parenting time. Violating a temporary order can bring sanctions, including an award of attorney fees to the other side.
Temporary orders are not permanent, and the judge may reach different conclusions at trial. But they carry real weight in the moment and often shape bargaining for the rest of the case. If one spouse has been paying temporary maintenance for a year and the household has functioned on that arrangement, judges tend to give the status quo significant weight when setting the permanent number.
How the Court Divides Property
New York is an equitable distribution state, which means the court divides marital property fairly but not necessarily equally. There is no automatic 50/50 split. Property you owned before the marriage, gifts you received individually, and inheritances are generally separate property, but anything acquired during the marriage is on the table.5New York State Senate. New York Domestic Relations Code 236 – Special Controlling Provisions
The court weighs a long list of factors: the length of the marriage, each spouse’s income and property at the time of marriage and at divorce, age and health, the need for a custodial parent to remain in the family home, and whether either spouse wasted marital assets. Commingling separate property with marital funds (depositing an inheritance into a joint account, for example) can convert separate property into marital property. This is where forensic accountants earn their fees.
Spousal Maintenance
New York calculates maintenance using statutory formulas applied to income up to a cap of $228,000 for the higher-earning spouse. Above that cap, the court has discretion to award additional maintenance based on a separate set of factors.9New York State Unified Court System. Temporary Spousal Maintenance Guidelines Calculator
Duration is tied to the length of the marriage:
- Marriages up to 15 years: maintenance lasts 15% to 30% of the marriage’s length
- Marriages of 15 to 20 years: 30% to 40% of the marriage’s length
- Marriages over 20 years: 35% to 50% of the marriage’s length
These are guidelines, not hard limits. The court can adjust amount and duration based on earning capacity, career sacrifices during the marriage, and the standard of living the couple maintained. Temporary maintenance while the case is pending uses a slightly different formula from post-divorce maintenance, so the number you pay or receive during litigation may not match the final judgment.
Child Support and Custody
Child support runs on the Child Support Standards Act formula applied to combined parental income up to $193,000. The noncustodial parent pays a percentage that rises with the number of children: 17% for one child, 25% for two, 29% for three, 31% for four, and at least 35% for five or more. Above the cap, the court has discretion to apply the same percentages or consider additional factors.10New York State Senate. New York Family Court Act 413 – Parents Duty to Support Child Support also typically covers the child’s share of health insurance premiums and unreimbursed medical expenses, split between the parents in proportion to income. Work-related or school-related childcare is treated the same way.
Custody is decided on the best interests of the child, not the preferences of either parent. New York recognizes no legal presumption favoring mothers over fathers.11New York Courts. Best Interest of the Child The judge weighs which parent has been the primary caregiver, each parent’s mental and physical health, any evidence of domestic violence, work schedules and childcare plans, sibling and extended family relationships, and each parent’s willingness to foster a relationship with the other parent. Older children’s preferences may carry weight, though the judge is never bound by what a child wants. In high-conflict cases, the court may appoint an attorney for the child or order a forensic custody evaluation by a mental health professional.
Dividing Retirement Accounts
Retirement accounts are often the largest marital asset after the family home, and dividing them wrong triggers tax penalties. Employer-sponsored plans like 401(k)s and pensions require a Qualified Domestic Relations Order (QDRO) to transfer a portion of one spouse’s benefits to the other. A QDRO is a separate court order that the plan administrator must approve before any transfer.12Office of the Law Revision Counsel. 29 USC 1056 – Prefunding Balance and Funding Standard Carryover Balance
Done correctly through a QDRO, the transfer avoids the 10% early withdrawal penalty that normally applies to distributions taken before age 59½. The receiving spouse can roll the funds into their own retirement account and defer taxes entirely, or take a cash distribution and pay income tax without the early withdrawal penalty. IRAs do not use QDROs; IRA transfers in divorce must be specified in the decree and handled as a direct trustee-to-trustee transfer to avoid penalties.
Plan administrators reject defective QDROs often, and a rejected order after the judgment is entered creates expensive problems. Draft the QDRO before or alongside the final judgment rather than treating it as an afterthought.
Health Insurance After the Divorce
If you are covered under your spouse’s employer-sponsored health plan, divorce is a qualifying event under federal COBRA law that entitles you to continue that coverage for up to 36 months at your own expense.13Office of the Law Revision Counsel. 29 USC 1163 – Qualifying Event COBRA is expensive because you pay the full premium plus an administrative fee, but it keeps you on the same plan and provider network while you arrange permanent coverage.
The deadline matters. Either the employee or a family member must notify the plan administrator of the divorce within 60 days of the divorce becoming final or within 60 days of the date coverage would otherwise be lost, whichever is later. Miss that window and the plan has no obligation to offer COBRA at all.14New York State Department of Financial Services. Consumer Frequently Asked Questions – COBRA Coverage The automatic orders in effect during the case already prevent either spouse from dropping the other from existing insurance, so coverage should stay intact until the final judgment.
Taxes and Social Security
Your federal filing status depends on your marital status on December 31. If the divorce is final by that date, you file as single or head of household if you qualify. If the divorce is still pending on December 31, you are still married for tax purposes and file jointly or as married filing separately.15Internal Revenue Service. Filing Status
For spousal maintenance, federal law no longer allows the paying spouse to deduct maintenance payments, and the receiving spouse does not report them as income. This applies to divorce agreements executed after December 31, 2018, under the Tax Cuts and Jobs Act. Older agreements later modified may also fall under this treatment if the modification explicitly adopts the new tax rules.
Child-related tax benefits are a frequent source of conflict. The custodial parent (the one with whom the child lives for more than half the year) is generally entitled to claim the child as a dependent and receive the child tax credit. The custodial parent can voluntarily release that claim to the noncustodial parent using IRS Form 8332, and some settlements build this in. Spelling out who claims the children in the divorce agreement prevents disputes at tax time.
Social Security matters if the marriage is long. Once a marriage lasts at least ten years before the divorce is final, you may be entitled to Social Security benefits based on your ex-spouse’s earnings record. To qualify, you must be at least 62, currently unmarried, and divorced for at least two years unless your ex-spouse is already receiving benefits. The benefit can be up to half of your ex-spouse’s full retirement benefit, and claiming it does not reduce your ex-spouse’s payments or affect a new spouse’s benefits.16Social Security Administration. Can Someone Get Social Security Benefits on Their Former Spouses Record If your ninth anniversary has passed and the divorce is not yet final, that eligibility can be worth tens of thousands of dollars over a lifetime, and it should factor into any settlement decision.