Are you and your spouse amicable enough to come to a compromise on your divorce? If so, an uncontested divorce may be available to you. In an uncontested divorce, spouses simply choose to agree on all the important issues in a divorce via contract rather than going to court.
This article will explain the nature of an uncontested divorce and New York uncontested divorce law. If you still have any questions after reading this article or would like to file for an uncontested divorce, you should consult with an experienced divorce attorney.
Uncontested Divorce in New York Defined
While many states do not have a mechanism for uncontested divorce, New York actually has three different ways to file for an uncontested divorce: uncontested at-fault divorce, conversion divorce by separation agreement, and uncontested no-fault divorce based on irreconcilable differences. All three types of uncontested divorce require the complete agreement of the parties on all of the issues that could arise during the divorce. The only true differences between the three types of uncontested divorce are the time it takes to become divorced and the pre-requisite grounds for the divorce.
Prior to 2010, New York did not have a no-fault divorce law. Many spouses were stuck in endless limbo with “dead marriages” that they could not escape from because no mechanism allowed a divorce unless one of the parties was at fault. With the passage of New York’s no-fault divorce laws, however, New Yorkers can get seek uncontested divorces where they agree that a divorce should occur and they agree on the terms of that divorce.
Requirements for Seeking a New York Uncontested Divorce
To file for uncontested divorce in New York, the filing spouses must meet certain requirements. Any questions about these requirements can be answered by an experienced New Yorkdivorce attorney or family lawyer.
The first requirement for seeking an uncontested divorce in New York is the state residency statute. If the spouses were either married in New York or resided together in New York as husband and wife, either spouse must have been a resident for at least one year. If, however, the spouses did not get married in New York and the spouses never resided as husband and wife in New York, the spouse living in New York must have been a state resident for at least two years.1
Second, spouses seeking a divorce will need to come to an agreement on the terms of the divorce. This is most commonly accomplished through the signing of a legally binding separation agreement. A separation agreement is NOT a formal divorce. A separation agreement is a contract between spouses that lays out their agreement and terms of their separation. A fully completed separation agreement can serve as the basis for an uncontested divorce, and may be helpful in filling out the required divorce paperwork. Prior to signing any separation agreement (or any contract with your spouse), you should have an experienced attorney review the terms of the contract for you. Under New York law, the separation agreement must address each of the following issues:
- Equitable distribution of marital property,
- Payment or waiver of spousal support,
- Payment of child support,
- Payment of attorney’s fees and court fees,
- Child custody, and
- Visitation of minor children.
Finally, the divorcees must prove the grounds for divorce. New York has seven total grounds for divorce and all of them can serve as the reason for an uncontested divorce. As explained above, New York has three different at fault divorce mechanisms: uncontested at-fault divorce, conversion divorce, and uncontested no-fault divorce. Each mechanism will be explained below.2
Uncontested At-fault Divorce
Four at-fault grounds (cruel and inhumane treatment, abandonment, confinement of the non-filing spouse in prison, and adultery) for divorce exist under New York law. Couples seeking an uncontested divorce without a waiting period may file for an uncontested at-fault divorce. Spouses who do so may be divorced immediately; however, the pre-requisite facts and evidence to prove the at-fault ground must be available. Additionally, uncontested at-fault divorce may not be the best solution for you and your spouse in every case. Most at-fault divorces end up contested because neither spouse wants to publicly admit wrongdoing, which can be embarrassing.
Spouses seeking a conversion divorce must have either lived apart for at least a year pursuant to a written agreement of separation. Conversion divorce is unique in that it takes the longest to qualify for (one year) and the most prior planning, but the parties usually spend the least amount of time in court. To file for a conversion divorce, the parties must simply file a divorce petition with the written agreement attached claiming that the parties have been living apart under the terms of the agreement for at least one year. Once the court has received the divorce petition and written agreement, the spouses need to file a joint stipulation requesting summary judgment for the divorce. The court will then grant summary judgment and finalize the divorce.
Uncontested No-fault Divorce
This type of uncontested divorce is the most common New York uncontested divorce as the waiting period is shorter than for seeking a conversion divorce, and neither spouse is required to prove wrongdoing as in the case of at-fault divorce. New York’s no-fault ground for divorce is known as the 'irretrievable' breakdown of the relationship. To seek an uncontested divorce under this ground, spouses need only prove that the relationship has been broken down for a period of at least six months.
The Process for Filing for an Uncontested Divorce in New York
Once you and your spouse have decided to file for an uncontested divorce, the general flow of the process is as follows:
- This step is optional, but you should begin by consulting a family law attorney who can either answer any questions that you may have, or who can help you file your divorce paperwork properly. If you do not plan to seek the help of a lawyer, you should review the New York state courts’ instructions for making divorce filings.3
- Fill out the appropriate divorce forms with you and your spouse. For assistance with filing, the New York state courts’ website has a compilation of uncontested divorce forms that you may use.4
- Next, you and your spouse should prepare a separation agreement.
- Fourth and finally, you will actually make a divorce filing. Filing instructions can be found on the New York state courts’ website.5 In short, you will file the summons and divorce complaint listed as a matrimonial lawsuit in the New York Supreme Court in the County in which either of the spouses satisfies the residency requirement. The filing spouse must conduct service of process. Once the paperwork is filed, the judge will enter a final judgment of an uncontested divorce where the parties have consented to the terms of a separation agreement.
Note: This article is not legal advice. Please consult a lawyer for your specific situation.
- NY CLS Dom Rel § 230.
- NY CLS Dom Rel § 170.
- INTRODUCTION TO UNCONTESTED DIVORCE INSTRUCTIONS (Rev. 3/1/16), NYCOURTS.GOV
- Uncontested Divorce Forms, NYCOURTS.GOV
- Uncontested Divorce Overview, NYCOURTS.GOV