Frequently Asked Questions
NY Uncontested Divorce FAQ
Q: What is an uncontested divorce?
A: An “uncontested” divorce, as apposed to a “contested” divorce, is where both spouses agree with respect to all issues concerning the dissolution of their marriage. That is, both spouses must want the divorce and agree on issues relating to the grounds for the divorce, custody of the children, visitation rights, child support, spousal maintenance as well as an equitable division of the marital property. If all issues can be resolved before the divorce is filed, neither party must appear in court and the divorce can be filed as “uncontested” from inception.
Q: What are the “grounds” for divorce?
A: The “grounds” for a divorce is nothing more than a legally recognized reason for the dissolution of a marriage. As of October 14, 2010, New York is a “no-fault” state. That is, New York now recognizes “no-fault” actions for divorce based upon the “breakdown of a marriage” for a period of more than six (6) months. In New York, a judgment of divorce may be granted based upon one or more of the following recognized causes of action:
- Actual abandonment (12 months or longer)
- Constructive abandonment (12 months or longer)
- Cruel and inhuman treatment
- Conversion of a written and acknowledged separation agreement after living separate
and apart for more than one (1) year
- The marriage has broken down irretrievably for a period of at least six (6) months
Each case is unique. Upon reviewing your particulars, our attorneys will be sure to explain the
various grounds and their significance.
Q: Does “No-fault” mean that my spouse does not need to sign the divorce papers?
Q: I recently moved to New York, am I eligible for a New York divorce?
A: That depends. New York maintains specific “residency” requirements that must be met before a couple can file for divorce within the State. In order for the court to accept your case, you and your spouse must fall into one of the “residency” circumstances outlined below:
- You were married in NY and either you or your spouse is a resident of NY when the action is commenced and has been a resident for a continuous period of one year immediately preceding.
- You and your spouse have resided in NY as husband and wife and either of you is a resident of NY when the action is commenced and has been a resident for a continuous period of one year immediately preceding.
- The “grounds” occurred in NY and either of you has been a resident of NY for a continuous period of at least one year immediately preceding the commencement of the action.
- The “grounds” occurred in NY and both of you are residents of NY at the time of the commencement of the action.
- Either of you has been a resident of NY for a continuous period of at least two years immediately preceding the commencement of the action.
If this seems somewhat confusing, don’t worry. One of our attorneys will explain the residency requirements and determine which best applies to your situation.
Q: Will I need to visit your office for a consultation or conference?
A: Not unless you prefer to meet in person. Office visits are not required at any time. Once we have been retained you will have an opportunity to consult with one of our matrimonial attorneys by phone or, if you prefer, you may schedule an in-person meeting at our offices. We are always available for questions and inquiries by phone or email. All document communication can be handled by mail, email or fax. Documents requiring a signature will be mailed to you, with clear instructions and will include a return envelope for a prompt response.
Q: How long will my divorce take?
A: That depends on the level of cooperation we get from your spouse. If you and your spouse have come to an agreement regarding the division of property, child support payments, custody and visitation, then all that remains is to file a civil uncontested divorce. That faster your spouse signs and returns the necessary paperwork, the faster it can be finalized and filed with your local county clerk’s office. If everything runs smoothly, you may receive a Judgment of Divorce in as little as 4-12 weeks (varies by county) from the date we file your note of issue, pleadings and signed affidavits.
Q: Must I use a process server for service of the divorce papers?
A: Using a process server will ensure that your spouse has been properly served according to statutory provisions. Process service also provides the proof of service required to finalize your divorce. If you are certain that your spouse will sign and return the divorce papers (effectively admitting service) then using a process server will not be necessary. Otherwise, to ensure that your case does not expire due to your spouses failure to sign and return the papers in a timely manner, we recommend you use a process server.
Q: What if my spouse refuses to sign the papers after he or she is served?
A: Generally, in an uncontested matter, after your spouse is served he or she has the option of signing what is called a “Defendant’s Affidavit of Consent” which essentially allows the divorce to be immediately placed on the courts calendar, waiving all applicable time periods. If, however, your spouse fails to sign the “Affidavit of Consent” which will be provided, you will be required to wait 40 days after the date of such service in order to proceed with the final steps.
Q: Will I need to make any court appearances?
A: As long as your divorce remains uncontested, you will not have to make any court appearances. We will handle the entire process via mail, phone, email or fax.
Q: What happens if an uncontested divorce becomes contested?
A: This is always a possibility. After your spouse is served with the divorce papers, he or she may decide to contest the divorce. Often times, a divorce may be contested where the defendant spouse does not agree with the specified grounds for divorce, the relief sought, demands for support, or the terms of property division or child custody arrangements. If this happens, then your uncontested divorce becomes contested and it will cost you (and your spouse) significantly more in legal fees (and time, including court appearances).
Q: How can I avoid the possibility of my divorce becoming contested?
A: The best way for you to avoid a contested divorce is by arriving at a consensus with your spouse regarding such matters as child support (if applicable), spousal support (if desired), or the terms of property division or child custody arrangements. If you and your spouse are on civilized terms, you should attempt to involve your spouse in the divorce process as early as possible. This will ensure that he or she is not surprised by your actions and therefore less likely to contest the divorce.
Q: Do I need to have a separation agreement or stipulation of divorce prepared?
A: A separation agreement is a legal contract between spouses that addresses the division of assets and liabilities, as well as any support, maintenance, custody or visitation issues. A separation agreement is enforceable by the courts and may be filed with the county clerk. At the end of one year from the date of the agreement, either spouse may file for divorce based on a one-year separation pursuant to separation agreement. A stipulation of divorce is effectively the same document but generally prepared and filed along with the divorce papers and may be incorporated with the Judgment of Divorce. If you and your spouse have children or any significant assets and/or debt it is advisable to prepare a separation agreement or stipulation of divorce memorializing the terms of your divorce. The stipulation of divorce will provide a comprehensive outline of your agreements concerning all divorce related issues. This document is binding and enforceable by either spouse. If you would like us to draft a separation agreement or stipulation of divorce for you please speak with one of our matrimonial attorneys.