Not every divorce requires years of litigation and acrimony. Many couples are able to divorce each other by mutual consent.
An uncontested divorce is a divorce action terminating the marriage where both parties agree to end their marriage and agree to amicably settle all the provisions that apply to their situation.
In a contested divorce where the parties cannot agree, the judge must hold a trial, take witness testimony and make decisions about who should win and who should lose (substituting her decision for the parties). In contrast, in uncontested divorce, the spouses agree on all the major issues ahead of time and there is no need for the court to be involved in the details.
What issues do the parties have to agree on in an uncontested divorce
- Grounds. What is the reason for divorce? In NY, the chief grounds for an uncontested or collaborative divorce is the no-fault “irreconcilable differences,” which is prescribed in DRL Section 170.7.
- Children. Custody, visitation and a parenting plan.
- Child Support.
- Property and debt division.
Benefits of an uncontested divorce
There are many benefits to divorcing without litigation, collaboratively. The legal fees are much more affordable, there is no need for a trial and public attention. The process is much quicker and causes considerably less stress.
Filing for an uncontested divorce in New York
To be able to file for divorce in New York, the parties have to satisfy the “residency requirements” or jurisdiction. This means that either:
1.At least one of the parties has been residing in New York for at least two continuous years immediately prior to filing for divorce, or
2. At least one of the parties has been living in New York for at least one continuous year immediately before filing for divorce AND an additional condition applies that:
- the spouses were married in New York, or
- the spouses lived in New York as a married couple, or
- the grounds for the divorce happened in New York
Process service of divorce papers
All divorces are commenced (started) by filing a Summons or Notice of action together with a special informational notice or a complaint listing the grounds for the divorce and all the issues the plaintiff spouse wants the court to rule on.
The opposing party must be properly served with the divorce papers. There are special state rules in divorce cases that require the defendant spouse to be served in person. If the plaintiff spouse does not know where the other party is or if the defendant spouse cannot be located, the plaintiff may ask the court for an alternative method of process service.
NY has begun allowing service of process via social media in limited cases and by publication in others.
Even in uncontested divorces, the plaintiff spouse must assemble a package of forms for the divorce including forms about the couple’s health insurance, child support, custody and visitation, and alimony and property division or waivers thereof. in addition, there are forms included that help the State report the divorce in all its records agencies and collect statistics about the divorcing individuals.
Uncontested Divorces go on the court’s “uncontested” calendar and in certain states like NY get signed by referees or arbiters in some states.
Some people ask the court for an order allowing them to return to using their maiden name or other prior legal names once they are divorced.
At the end, when the divorce decree or judgment of divorce is signed by a judge or referee and each party is entitled to receive an original divorce decree for their records.
At Shepelsky Law Group, we handle many uncontested divorces, from simple ones without any property or children at issue, to the most complex ones with detailed multi-page Settlement Agreements. If you are looking for an uncontested amicable divorce and your spouse agrees, we can make it happen as painlessly as possible for you and your family. We have the knowledge, experience and understanding of the process to get you divorced with minimal damage.