Alyssa Ann Rower
Family Law Attorney,

Rower LLC

 What EXACTLY does it mean to “file for divorce” and when should I be doing this?

A:  While there isn’t just one way to proceed in a divorce case and your particular path will depend on your individual circumstances, there are some typical steps. [1]

I am often asked by my clients early in a case whether they should “file” for divorce. Filing for divorce consists of filing a Summons with Notice or a Summons and a Complaint with the New York State Supreme Court.  The filing date is the “date of commencement” of the divorce action. Once you file, you have 120 days (or roughly 4 months) to serve your spouse.

You must commence an action to ultimately get a divorce, but when one files can vary greatly from case to case—in some cases, it is the very first thing we do and in other cases, we don’t file until after the financial settlement agreement is signed.

When you file depends on a few factors:

First, starting an action stops the clock on the accrual of marital wealth and signifies the end of the economic partnership of the marriage. So, your decision to file depends in large part on whether you want that clock to stop. If you are the spouse who continues to accrue wealth, then what you save after the date of commencement (aside from a few exceptions) will be yours alone.  If you are the spouse seeking maintenance or who doesn’t earn the money, then you may have a better chance of receiving maintenance and increasing the marital pot if the marriage is longer.

Second, the date of commencement is an important date for purposes of valuing “active” assets such as business interests. When you file may depend on where you think the value of active assets is heading and whether you want to be locked into a particular date.

Third, when you file will depend on when you want the Automatic Orders to come into effect. The Automatic Orders, which you can find here, prohibit the parties to a divorce action from, among other things, accruing debt or changing the beneficiaries of life insurance policies. Make sure you are ready to abide by these orders before you file.

Finally, if you want your case to be assigned to a judge, you will need to file. While starting an action does not get you assigned to a judge, you can’t file a Request for Judicial Intervention, which does get you in front of a judge, until the Summons is filed and served.


[1] Keep in mind that this column refers only to  New York law, so if you live in another state, consult a lawyer in that state for the procedures.