Divorce is never an easy thing, but some divorces are easier than others, at least from the perspective of legal process. When two people have grounds to end a marriage and are both in agreement on how it is to be settled, then you have what is called an uncontested divorce.
Grounds for Divorce in the State of New York
The state of New York has seven grounds that will be accepted by any court for divorce. These include cruel & inhumane treatment, abandonment (a spouse simply disappears), imprisonment (one spouse is convicted and sent to jail), adultery, divorce that follows a period of legal separation and divorce that follows the initial judgment for legal separation.
The seventh ground is what is officially termed irretrievable breakdown. You may be familiar with its more colloquial description of “no-fault divorce.” In New York, this means the spouses agree that the marriage has been fundamentally broken for at least six months and is not likely to be put back together.
So, if you meet these grounds, do you have an uncontested divorce? Not quite. You have agreement that the marriage is over, but there’s still the considerable matter of dividing up assets and settling any alimony payments. If children are involved, custody matters must be also settled.
Your attorney can be a valuable asset in working to secure the agreement necessary for an uncontested divorce. Settlement is not as easy as just dividing up the property and assets 50/50. New York is an equitable distribution state. This means that in the event the divorce comes before a judge (i.e. if it becomes contested), assets will be divided up in the way that is deemed most equitable by the court. Perhaps that will be a 50/50 split. But perhaps not.
What both you and your spouse might expect from the judge is likely to impact how amenable you are (or aren’t) in the negotiation process for a settlement and an uncontested divorce. Let’s say your spouse brought a substantial stock portfolio into the marriage. Let’s say your marriage lasted for 12 years and that portfolio grew significantly, with additional investments made over that time frame.
You and your spouse are working towards uncontested divorce, but this portfolio must be divided up. Will your spouse get all or most of the funds on the grounds that it was theirs prior to the marriage? Or will the investments made with funds that belonged equally to you be given priority in an equitable split? It’s not an easy call and it’s anything but black and white.
This is the type of scenario where a family law practice like Jason M. Barbara & Associates, P.C. can offer you value. Whatever side of the fence you’re on, we’ve seen numerous cases involving situations much like this one. The details are complex and nuanced. Every case is a little bit different, but each one has commonalities. We can help you fight for the result you want–an uncontested divorce, yes, but one that truly meets the definition of fair and equitable for you.
The Uncontested Divorce Process
Presuming that a good settlement is secured, you and your spouse can now move forward with the uncontested divorce. We’ll take care of filing your paperwork–which includes the settlement agreement and plans for continuation of healthcare coverage–with the County Clerk’s office. The way this is done is to buy an index number at the clerk’s office in your home county. The index number must be included on your Summons and Complaint, which serve as your official filing for divorce.
Once the divorce has been filed, the next step is to formally serve the other spouse. Presumably, since the premise here is an uncontested divorce, this will be no surprise to anyone. But basic procedures must still be followed and that includes formal delivery of the divorce paperwork. This must be done within 120 days of when the original divorce filing was made with the court. Furthermore, the service must be done by an independent party that submits an affidavit verifying service of process was carried out in accordance with the laws in the state of New York.
The spouse who receives the paperwork will then sign an affidavit of their own agreeing to the divorce. At least this is what happens in an uncontested divorce. Other possible options include the spouse contesting the divorce, or simply not answering at all. In the latter case, failure to answer in 20 days means the process moves forward.
Moving forward means putting the divorce on a judge’s calendar. Of course, this comes with a lot of paperwork that has to be both notarized and submitted. Even an uncontested divorce brings plenty of paperwork for your attorney to help you with.
In cases like this, the only matter the judge must decide is whether a divorce is truly uncontested–that is, the final agreement was not done with coercion and that it is fair to both parties. Once that judgement has been made, the final paperwork is signed. The Judgement of Divorce must be filed with the County Clerk and service of process must be done again. The spouse who initiates the divorce has the final divorce order formally served to the non-initiating spouse.
How Long Will This Take?
That’s a lot of a paperwork and process for a divorce where both parties are essentially in agreement. But in the state of New York, it’s typical for everything to be wrapped up in four months. Just keep in mind two things–that timeframe is not a guarantee for any specific case since they’re all a bit different. And that period does not include the time it takes to negotiate a settlement. Depending on the complexity of your assets, a fair and equitable settlement can take longer to work out. As much as both spouses in this rough situation want to be moving on with their lives, it’s a serious mistake to rush through the settlement. Getting that right on your behalf is what lawyers are for.
At Jason M. Barbara & Associates, P.C, we have over 20 years of experience in divorce cases like yours. We know how to fight. Your lawyer must know how to be both tenacious and strategic, and we strive to give our clients the highest level of service each and every day. Schedule a free consultation with us today, either here online or by phone at (516) 406-8381.