Contested vs. Uncontested Divorce Procedures
Going through a divorce is seldom a pain-free experience, but married couples in New York State who are seeking to dissolve their union have access to multiple options, which increases the chances of finding the type of arrangement that suits the preferences of both parties.
For many, divorce brings up images of acrimony and tense arguments held in intimidating courtrooms, but it doesn’t have to be that way. Divorces aren’t all alike. They vary considerably in the amount of time they take to reach a resolution, as well as the specific stages in the process that must be gone through. They can end quickly and with minimal fuss, or they can drag on for years.
The primary divide is between contested and uncontested divorces. To put it simply: Contested divorces are those where the terms must be settled in court due to persistent disagreement between the spouses; uncontested divorces are those where both parties come to an agreement without the need for a trial.
Whether you’re going through a contested or an uncontested divorce, there are a number of tricky nuances involved in the process, so you should consult with an experienced attorney for legal assistance as early as possible. You can find the help you need by contacting Joseph A. Ledwidge, P.C., a family and divorce lawyer who offers legal services to clients in the New York City metro area. Keep reading for more information on the differences between contested and uncontested divorces in New York State.
What Is an Uncontested Divorce?
In an uncontested divorce, both spouses are able to agree on all issues concerning division of property, child support (if any), and other relevant matters involving the apportioning of assets or responsibilities that the couple had shared during the marriage.
As you might guess, an uncontested divorce is the less expensive and less time-consuming of the two options. It is also much less burdensome on the legal system. For this reason, the courts tend to encourage divorcing couples to figure out an agreement as amicably as possible, dispensing with the need for judicial intervention.
An uncontested divorce does not necessarily mean that an agreement is reached without the aid of attorneys. In fact, it is highly recommended that persons going through an uncontested divorce seek out legal representation to ensure that their rights are adequately protected. Divorces, even uncontested ones, can become very complicated.
One big advantage of an uncontested divorce is that it gives spouses an opportunity to work out an agreement that both parties find acceptable. If this isn’t possible, the courts will have to figure out how to divide assets—and that may end up being far less than satisfactory for one or both parties.
In an uncontested divorce, there are a number of legal forms that must be filled out and sent to the court. Again, this is best done under the supervision of a legal representative.
What Is a Contested Divorce?
In a contested divorce, the spouses are unable to agree on one or more matters relating to the dissolution of the marriage, whether that is alimony, child custody, division of property, or another issue.
A lot of times, there is only one point of contention that prevents the spouses from reaching an agreement—for instance, they may agree on dividing all assets equally, but can’t settle on a child custody arrangement. This is, therefore, a contested divorce. The more elements involved in the divorce case—minor children, investments, homes, sources of income, etc.—the more likely it is that a matter will arise that the two parties will be unable to agree on.
There are other reasons why a couple might end up in a contested divorce:
- Because New York State law requires the spouses to formally state specific grounds for divorce (see below), this can be another issue that prevents the two parties from coming to an agreement.
- Contested divorces also include cases where one spouse does not wish to dissolve the marriage.
It is common for a contested divorce to become an uncontested divorce, as the two parties eventually arrive at an agreement. If such an agreement doesn’t happen, the courts will have the final say in creating the terms of the divorce.
How to Begin a Divorce Action in New York
The divorce process begins when one spouse (plaintiff) files a Summons with Notice with the County Clerk’s Office. Then copies of these papers must be served to the defendant by a third party who is at least 18 years of age. In situations where the defendant cannot be located, the plaintiff has to obtain permission from the court to try an alternative method of service.
The defendant, once in possession of the summons, is required to file a response with the court within a specified time period. If the defendant fails to respond, the divorce is granted by default.
Acceptable Grounds for Divorce in New York
Under the laws of New York State, divorcing couples, or the spouse requesting a divorce, must state a reason for the dissolution of the marriage. Traditionally, New York recognized only at-fault divorces—that is, one spouse had to accuse the other of mistreatment or inability to perform marital duties, making the healthy continuation of the marriage impossible.
That changed in 2010 when New York became the last state in the union to legalize no-fault divorce, which made it possible for couples to end their marriage without needing to hurl accusations of misconduct.
Today, New York divorce court permits couples to divorce on at-fault or no-fault grounds.
Any of the following at-fault causes can be declared:
- Cruel and inhuman treatment –This can include physical, verbal, and/or emotional abuse. Occasional arguments, or an isolated incident that does not fairly characterize the overall course of the marriage, generally will not count.
- Abandonment – For at least a year, and without good cause. Abandonment can also take the form of a “lockout,” where one spouse refuses to allow the other into the home for at least a year. Another form is “constructive abandonment,” in which one spouse refuses sexual relations for at least a year.
- Confinement in prison – For a period of at least three consecutive years after the beginning of the marriage.
- Separation – The couple is already legally separated according to state law (e.g., with a formal Separation Agreement).
An at-fault case may be dismissed if its grounds for divorce are based on incidents that took place or were discovered more than five years before.
Alternatively, it is also possible to file on the no-fault grounds of “irretrievable breakdown.” This means that the marriage has been in a state of failure for at least six months. As this is a no-fault cause, there is no need to assign blame to any spouse for the collapse of the marriage.
Residency Requirements in New York State
To get a contested or uncontested divorce in New York State, you must meet residency requirements. These can be summarized as follows:
- One spouse must have been living in the state continuously for a minimum of two years prior to the beginning of the divorce action.
- One spouse must have been living in the state continuously for a minimum of one year prior to the beginning of the divorce action AND the couple were married in New York State or lived in the state as a married couple.
- One spouse must have been living in the state continuously for a minimum of one year prior to the beginning of the divorce action AND the grounds for divorce occurred in the state.
- Both spouses are residents of New York State on the date that the divorce action begins AND the grounds for divorce occurred in the state.
All divorce cases are handled by the Supreme Court of the State of New York. (Family Court does not deal with divorce actions.)
Contact Joseph A. Ledwidge, P.C.
The foregoing is an overview of the divorce process in New York State and, as such, does not cover all the circumstances that can arise in these cases. To avoid unnecessary complications, it’s always best to have an advocate in your corner. You should contact a divorce attorney who can guide you through the process and ensure your rights are protected.
Serving clients throughout New York City, Joseph A. Ledwidge, P.C., has years of experience in legal matters relating to marriage and divorce. He handles many family and divorce law matters, from contested/uncontested divorces to prenuptial agreements.
Call 718-276-6656 for a free consultation.
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