There is no perfect timing for a divorce. Once you’re certain about your decision, you can choose to file at any time. However, delaying or speeding up filing can be advantageous in certain instances.
How to File for Divorce
To start a divorce action, you file a summons with notice or summons with complaint for divorce in the county clerk’s office and then serve what you filed with the county clerk on your spouse within 120 days. You can serve your spouse either by retaining a process server or simply by handing the documents to your spouse or your spouse’s attorney and getting a signature acknowledging the service.
Financial Reasons to Time Your Divorce
Upon filing of a divorce action, any income earned by you or your spouse becomes “separate property.” Separate property is not split in divorce. This means neither of you can claim a share of the other spouse’s income from wages, bonuses, stock options and other benefits after the date of filing, with some important exceptions.
As a result, a higher-earning spouse may look to file for divorce sooner rather than later to minimize what his or her spouse gets, especially if the higher earner is expecting a payout. The lower-earning spouse may want to delay filing for divorce in order to preserve his or her rights to those funds.
Delaying Divorce Because of a Difficult Spouse
If your spouse doesn’t want to divorce and may react badly to receiving a summons, you may want to wait to give your spouse time to cool off or address other issues. In this situation, you could still file for divorce, knowing that, in New York, you have 120 days to serve your spouse. This time can also be extended, but you would need to file a motion with the court. Generally, it’s less costly to just file a new divorce action, rather than get an extension, unless you want to preserve the original filing date for the financial reasons discussed above. You should talk with your lawyer to learn which option is better for you.
Even if your spouse is difficult, generally, you should discuss divorce before filing and serving him or her. Surprising your spouse with a summons from a process server will usually make the divorce process more antagonistic, which may lead to a longer and more costly divorce.
If you are considering a divorce, contact us to discuss any concerns you have about the timing and learn how we can help you achieve a positive outcome.
