An uncontested divorce, unlike a contested matter, is one in which the parties have reached an agreement regarding the major issues in the divorce without the aid of the courts. Usually, this means that parties themselves, with or without the aid of their attorneys, have created a marital settlement agreement outlining the terms of their divorce.
However, at times mediation is necessary and can be a helpful tool. Additionally, another kind of uncontested divorce is one in which one spouse cannot be located or has elected not to participate in the divorce process.
Castro C.L.A.N. is available to help with Divorces subject to New York law and can provide services for those in other states who meet certain requirements. Before you begin an uncontested divorce in New York you must be sure you meet the residency and waiting time requirements.
To file for divorce in New York, one of the following requirements must be met:
You or your spouse has continuously resided in New York for more than 2 years;
You or your spouse has continuously resided in New York for more than 1 year, AND one of the following has occurred:
(a) the two of you were married in the State of New York, or (b) the two of you have lived as husband and wife in the State of New York, or (c) the cause of action occurred in the State of New York (e.g. abandonment);
The cause of action occurred in the State of New York and both you and your spouse will be residing in New York when you file for divorce.
Waiting Time Requirements
In New York, there are six possible grounds for divorce, but 2010 amendments to the law now allow for a No Fault Divorce or divorce without any grounds, which is the most popular option. Other grounds:
Cruel and Inhuman Treatment**;
Confinement of Defendant;
Separate and Apart Pursuant to a Decree or Judgment of Separation***;
Separate and Apart Pursuant to a Separation Agreement***.
**If you wish to pursue a divorce based on Cruel and Inhuman Treatment or based on Adultery, please contact an attorney.
***If you wish to pursue a divorce after separating from your spouse, you and your spouse must have lived apart for ONE FULL YEAR in compliance with the terms of either a properly executed Separation Agreement or a Decree or Judgment of Separation.
You have the option of completing a Separation Agreement, prior to completing our uncontested divorce package. After you and your spouse have signed the Separation Agreement and lived apart for one year, you may return to our site and complete the uncontested divorce package.
After serving the divorce papers on your spouse, he or she has 20 or 30 days to respond, depending on whether he or she resides inside or outside the State of New York. After this point, the time required for your divorce to become final depends on when you submit the required documents and the time required by the court to process your paperwork. The time required by the court will vary and cannot be predicted with certainty.
General Steps to an Uncontested Divorce in any State
Filing a petition for a divorce, also called a petition for dissolution of marriage, this document can be prepared in a short period of time. If a litigant does not wish to engage the help of an attorney and wishes to complete it themselves, the domestic relations division of the court clerk’s office might have form petitions for divorce that can be filled out or they may have someone available to guide you in drafting the divorce petition. Divorce petitions can be difficult for people with no legal background to create and can become confusing very fast. It is recommended that you seek the aid of an attorney.
In addition to filing a divorce petition, each jurisdiction has a veritable trove of additional forms that need to be filled out. Again, the court clerk’s office may be able to assist you with finding the proper paper work and filling it out (when they are feeling cooperative). Some of the good court clerks prepare a “divorce” packet that consists of all the forms that may need to be completed, along with some instructions on how to properly fill them out and where to file them, and a list of the filing fees for each type of document. While it is possible to fill out the wrong documents or leave things out, the instruction are pretty clear most of the time. Generally, one can file for divorce in the state and county where they were originally married or the state and county where one of the parties currently resides. Before filing paperwork and paying hefty court filing fees, make sure you are filing for divorce in the correct jurisdiction.
Typically, the following information is needed in a Petition for Divorce in the following order:
The names, birthdates, and addresses of both parties;
The date and location where the parties were married;
The date the parties separated;
The names and birthdates of any children born of the marriage;
A brief description of the assets owned by the parties;
A brief description of the debts owed by the parties; and
A list of any relief that may be requested by the Petitioner (divorce, sole custody, child support, spousal support, etc) is required.
Other forms that may need to be completed at the time the Petition for Divorce is filed include a Civil Summons (so that the opposing party can be served with a copy of the petition), and a Military Service Affidavit (stating that your spouse is not serving overseas in the military). Additionally, some states have their own tracking forms to keep tabs on the numbers of marriages that end in divorce.
Most states require that the party filing for divorce attempt to personally serve their spouse with the requisite divorce petition several times before reverting to other forms of service. If you and your spouse are proceeding amicably with your divorce, you can simply hand him/her a copy of the filed documents and ask that he/she file an appearance at the court clerk’s office. An appearance is your spouse’s formal entry into the case and considered proof of personal service. If you do not feel comfortable serving your spouse on your own, you can enlist the services of a legal process server, or the local sheriff’s office to serve the documents on your behalf. If you hire someone other than Castro C.L.A.N., be sure to file the “affidavit of personal service” prepared by the process server with the clerk of court.
In the event that your spouse cannot be located or is evading service of process, you may be able to serve him via publication. Publication service generally requires that a classified ad announcing that your spouse has been named in a legal action (the divorce) run in a local paper for a certain period of time. Once this requirement has been filled, your spouse will be deemed to have been served with notice of the divorce. EPS can assist you in setting up service by publication.
How Your Spouse Can Respond
Once your spouse has filed an appearance in the divorce or prove that he/she was served has been filed, he/she can then, if he/she chooses, file a response to your divorce petition. While the party served is generally not required to file a response or counter-petition for divorce of his/her own, he/she may wish to do so in order to protect his/her own legal interests. For example, any allegations in your initial divorce petition might be deemed to be true, if not specifically refuted by your spouse in a formal response. Additionally, unless your spouse files a counter-petition for divorce, the case will be terminated upon your voluntary dismissal of your petition. In that regard, if your spouse is adamant that he wants a divorce as well, it is in his best interests to file his own petition for divorce requesting specific relief.
Step Three: Negotiating the Settlement
Once your spouse has been served with a copy of the Petition for Divorce, it’s time to begin attempting to negotiate an agreement. This is one of the more difficult parts during divorce, because in most cases the parties have a difficult time agreeing on certain issues, especially if there is any ill-will between spouses. Major issues that need to be resolved include the following:
Who gets the martial residence?
How will the financial accounts be divided?
How will the marital debt be divided?
How will taxes be divided before the divorce is final?
In the event that you and your spouse are unable to reach an agreement on the main issues in your divorce, you have options for getting assistance. Mediation is a valuable resource wherein an impartial professional mediator helps you both secure a fair resolution. Castro C.L.A.N. offers mediations services for a reasonable price with experienced mediators using cutting edge techniques. As a last resort, you can take your divorce to trial and have a judge rule on the unresolved issues.
Once an agreement has been negotiated by the parties, the agreement is reduced to writing in a contract that contains all the terms of the divorce. This contract is called a “marital settlement agreement.” A copy of the marital settlement agreement is attached to the final divorce decree and incorporated therein. As such, the terms of the marital settlement agreement create legally-enforceable obligations upon each of the parties. The main points that must be included in a marital settlement agreement include:
That the agreement was entered into freely and voluntarily by each party;
Custody (legal and residential)
A visitation schedule
Spousal support (the amount or a statement that it has been waived);
The distribution of the financial assets (including retirement accounts);
The distribution of the marital residence; and
The distributions of the marital debts are essential.
Step Five: Finalizing Divorce in Court
The last step in finalizing a divorce is “proving up” the divorce at a hearing. Such hearings are typically very short, often taking less than five minutes. At a “prove up” hearing, the court will briefly review the marital settlement agreement and ask both sides if they understand everything contained in it. The court will then ask both sides to state that they entered into the marital settlement agreement voluntary and not under duress. The court may ask the parties or their lawyers some brief questions about the terms of the agreement. Once the court is satisfied that that the marital settlement agreement is fair and voluntary, the judge will sign the divorce decree and the divorce will be final.
While every state and county requires different forms at a prove-up hearing. Typically, the following documents are needed:
Several copies of the marital settlement agreement;
A copy of your child support order;
A copy of your spousal support order, if any;
A copy of the quit-claim deed to the marital residence, if necessary.
Doing it yourself vs. Hiring a Lawyer
It is certainly possible to secure a divorce without the aid of an attorney, but there are pros and cons to both sides. Attorneys can, in some situations, add fuel to the already smoldering fire of a divorce, but they are also vigilant over your interests and often present alternative ideas/negotiating tactics. Additionally, if your spouse hires an attorney and you do not, you may find yourself at a distinct disadvantage at the bargaining table. Moreover, if you and your spouse plan on hiring only one attorney between the two of you to draft a marital settlement agreement, you should be aware that attorneys, under law, can represent only the interests of one client. This means that if your spouse hires an attorney, even if only for the purpose of drafting paperwork, his attorney is obligated to advise him alone of his rights and obligations.
The best way to proceed through a divorce will always be with a competent and experienced family law attorney by one’s side. Hire Castro C.L.A.N. and rest assured that your rights will be protected.
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Serving in the Federal District Courts, Second Circuit Court of Appeals, New York Supreme Courts in Manhattan, the Bronx, Brooklyn, Queens, Nassau, Westchester, Broome and Onondaga Counties, as well as the Appellate Division First, Second, Third, & Fourth Departments for Complex Litigation, Appeals, & Negotiation.
We are available to meet in Manhattan and Syracuse, New York. If you would like to meet outside of these areas, please contact us and we can arrange for a meeting place to discuss your matter.
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