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Contested versus Uncontested Divorce in Brooklyn

An uncontested divorce occurs when you want to start a divorce against your spouse and your spouse does not contest the divorce in anyway. Complicating factors to any uncontested divorce occur when there are children under the age of 21 or when property needs to be divided or expressly excluded as per the terms of a divorce agreement. These factors however are very manageable in an uncontested divorce when all of the terms regarding child support and property division are agreed upon by both parties after full financial disclosure.

If you are unsure that there will be an agreement on issues of child support and/or property division then you might have to go to court and have the person in the black robe determine these issues. Furthermore, there are others issues you need to consider prior to applying for or agreeing to an uncontested divorce.

1. Do you need an order of protection to help keep you safe from your spouse after the divorce?
2. Do you need continued financial support (maintenance) from your spouse after the divorce?
3. Do you need health insurance?
4. If you and your spouse owned things together and/or owe money together, how should the property and debts be divided in the divorce?
5. Does your spouse have a pension or other financial retirement plan? Can you share in it if you divorce?

I can help you think through these and other important issues and take the legal steps to get you what you want. I strongly suggest that you give serious thought to contacting me prior to starting your divorce.

If you believe your divorce will be contested, there have been many cases already decided upon by various Courts in this State that may apply to your situation. For your convenience I have linked to the Unified Court System's Matrimonial Newsletter, which contains many cases of interest. Please remember however, this information is in no way a substitute for live legal advice. Please call me for a free phone consultation.

http://www.courts.state.ny.us/ip/matrimonial-matters/newsletter_spring_07.shtml

Frequently Asked Questions

How do I find a good New York divorce attorney?

There are a lot of considerations that go into finding a good divorce attorney, and quite a bit depends on what you want out of the divorce.

Start by talking to friends and relatives who have gotten divorces in the past. See if they can refer a divorce attorney to you. Keep in mind, however, that just because your friends and neighbors were happy with their divorce attorney does not mean that you will be. You need to know more than whether or not the attorney was “good.” You need to know about the attorney’s approach and fees.

You can also look up websites online. Keep in mind that earning the Google “top spot” is a result of good marketing skills—not good lawyering skills. Don’t let a search engine results page placement make your decision for you. Do a little digging and look at as many options as you can find.

With that being said, the lawyer’s website can tell you a lot. Attorneys who offer a lot of information on their websites will often take the time to explain matters to you in person, as well. In addition, you can get a feel for the philosophy of the law firm and the approach they use to take on cases by reading through their sites.

Eventually, you will have to start making some appointments and speaking to the attorneys on your short list face-to-face. Now you have to ask yourself what you want out of the divorce.

A “fighter” who will drag out litigation in the hopes of getting you what you “deserve” might not leave you in the best shape in the end. An attorney who will take a balanced, reasonable approach to family law and who is willing to help you bring the case to a livable outcome might be a better choice for you, both emotionally and financially. In the end, however, you’re the only one who can decide how you want and need to proceed, so ask about the percentage of cases settled versus the percentage litigated, and ask about each attorney’s approach to a new case.

Finally, you’re going to be spending a lot of time with this person, and you’re going to be putting a great deal of your future into your attorney’s hands. Make sure you’re personally comfortable with whomever you choose.

Do I need a lawyer to file for a divorce?

It depends. Do you have children? Do you or your spouse have a pension, a retirement account, or insurance policies? Do you or your spouse have other significant assets, like your own home, or shares in a business? Can you be 100% sure that your spouse will agree to dividing up and managing these assets precisely as you’d like to see them divided up and managed?

Many people who believe that their divorce is “simple” or “uncontested” learn otherwise very quickly. In fact, divorces that require you to grapple with custody, visitation, or orders of protection are so complex that the State of New York will actually appoint a lawyer to any low-income party who can’t afford a lawyer, just to make sure they get good legal representation on these three crucial matters.

DIY law forms are not sufficient. You’ll have to provide the Court with mountains of information. It only takes one mistake or a single omission to jeopardize your financial future, your relationship with your children, or both.

How do I get a divorce by publication?

A divorce by publication is not a quicker, easier way to obtain a divorce. It is only possible in the event that the spouse can’t be found, and the Court can’t just take your word for it. It’s also not a way to avoid working with an attorney, as an attorney will often be necessary to make your divorce by publication happen.

First, you’ll need to make a diligent effort to locate the spouse. Usually it’s best to have a New York divorce attorney take care of this detail for you. That’s because an attorney will understand what it will take to satisfy the court that the diligent effort has been made.

Often, diligent effort as defined by the court will be more than successful in locating the spouse. At that point, the spouse would need to be served papers just as if you’d known where he or she was all along.

If the spouse can’t be found then the attorney can go back to the judge and file a petition for an Order of Publication. This Order will be signed by a judge and will include very important details such as the name of the paper where the notice must be published, the number of times the notice must be published and the date by which the notice must be published. Usually the paper of choice would be the primary newspaper in the district where your spouse was last seen. The notice must usually be published three times within thirty days of the issuance of the Order.

If the spouse turns up before the third notice is published then divorce proceedings will typically proceed as normal. If the spouse doesn't show up 30 days after the third and final notice is published then, and only then, can your attorney go back to the court to file a divorce “by default.”

Why is the Judge forcing me to take a mental health evaluation in my family court case?

When custody is an issue the court’s primary concern is to determine what will be in the best interests of the child. Mental health plays a large role in this determination. Do not be offended when a Judge orders a mental health evaluation. He or she is not trying to imply that there are any preconceived notions about your sanity whatsoever.

The court typically orders a mental health evaluation for each parent. The evaluator will meet with the child as well. The court will then receive a written report with the evaluator's assessments and recommendations.

What is a forensic evaluation in a child custody case?

A forensic evaluation is a formal evaluation of the mental health of each parent and child involved in the custody case (see “Why is the Judge forcing me to take a mental health evaluation in my family court case,” above). A mental health professional always serves in the evaluator’s role.

Keep in mind that you are essentially being investigated during this evaluation. The evaluator may be trying to verify claims made by the other parent, such as claims made about alcohol abuse, drug abuse, parental alienation and more. The evaluator will also evaluate your parenting skills and approach as well as the bond between you and your child.

The evaluator can interview family members, friends, and anyone else who has regular contact with you and your child. “Anything you say can and will be used against you,” so it’s important to be very careful as you undergo this evaluation, and to communicate closely with your attorney so that you know how to put your best foot forward. Failing to cooperate can be a disastrous move as it will usually prompt the evaluator to conclude that you feel you have something to hide. Attend every meeting on time, and take the time you need to complete each meeting to the evaluator’s satisfaction.

What is a writ of habeas corpus?

In family law cases, a “writ of habeas corpus” is a court order demanding that you bring your child before the court. This usually would be issued in the event that you are suspected of violating a custody or parenting time order. The writ is satisfied once you bring the child to court; the court will decide how to proceed from there.

Call your attorney right away if you have been served with a writ. It is very important that you comply, even if you don’t understand exactly why you are being served with one. The judge can issue a warrant for your arrest if you don’t show up to the court on the specified date with the child in tow.

How long do I have to live in New York City to file for custody here?

Custody goes by state, not by city. You and your child need to have lived in New York for at least six months before you can file for custody here. Obviously your current home address should be in New York City if you are filing for custody in New York City. This “six month rule” is used to determine your “home state” for the purposes of deciding which court has jurisdiction.

This residency must be continuous—that is, without interruption. If you live in New York for three months, go live in Pennsylvania and return to New York two months later then the clock starts all over again.

Can Grandparents file for visitation in New York?

The law does recognize that a child can have an important relationship with non-parent relatives. If you have a “pre-existing and substantial” relationship with your grandchildren then it is possible to file for visitation in the event that the custodial parent is refusing such contact.

This does not mean that receiving visitation rights is simple. The court will award these rights if it is in the best interests in the child, and it’s not always easy to prove that the custodial parent’s decision is not within that child’s best interests. You will need a good attorney on your side if you wish to secure visitation rights.

How can I prove my child is emancipated so I can terminate child support?

Emancipation is never automatic, so you must always plan on petitioning the court to recognize the child’s status before you can stop paying child support. Generally, this will happen when the child is 21, but there are exceptions. Often, those exceptions will actually lengthen the amount of time you can expect to pay child support. For example, some divorce agreements stipulate that the child is not emancipated until he or she graduates from college.

A child might be considered emancipated earlier if he or she has a full time job, is married, or joins the military, but these are not the sole criteria that must be fulfilled. For example, if the child gets married with the blessing of both parents then the child support obligation generally continues until the child has reached the age of 21, in spite of the fact that the child is married. Speak to your attorney about whether or not your child’s specific circumstances might apply.

Emancipation is generally not related to where the child lives, even if it is not in the custodial parent’s home. You cannot get a child emancipated simply because he or she attends boarding school, for example. A child isn’t emancipated simply because he or she has been sentenced to do time in juvenile hall.

Can the Family Court force me to take a paternity test?

Yes. If the mother was not married at the time of the child’s birth and if nobody is stepping up to claim paternity then the court may order you to take a DNA test in order to determine paternity. This paternity test can only offer evidence as to the likelihood of paternity and will not, in and of itself, decide whether or not you will owe child support in the future. Child support would be covered during a separate hearing.

What are the costs for an uncontested divorce?

Though we would caution you against being too quick to label any divorce as truly “uncontested” (see “Do I need a lawyer to file for a divorce,” above) we can at least tell you the basic fee structure in the state of New York.

The first fee you can expect to pay is a $210 filing fee. When you are ready to finalize the divorce you will also pay $125 to file a “Note of Issue,” a document that tells the court that you are ready to finalize the divorce. You will also need to pay $8 to receive a copy of your Judgment of Divorce.

You may feel as if you’re getting a good deal if you can get a divorce for $343, and you may be one of the very rare and lucky parties for whom this is true. However, you may ultimately lose far more than $343 in the long run. You might, for example, inadvertently create language which prevents you from receiving assets you might otherwise have been entitled to a share in, such as your spouse’s pension. An uncontested divorce is usually only appropriate if you lack both children and assets.

What is the process for an uncontested divorce?

If at all possible, an attempt to file for an uncontested divorce should begin with a long conversation with your spouse. You’ll need to discuss all of the issues impacting the divorce, including the division of property, the assignment of debts, child custody, child support, and parenting time. Note that we strongly suggest that if you have any minor children or any real assets that you obtain the help of an attorney even if you feel your spouse is ready to agree with all of your terms.

Next, you would obtain an “uncontested divorce packet” from the clerk of court, or from the New York Court website. Make sure you get the right one; there’s one for parties without minor children and there’s one for parties with minor children.

Complete either the “Summons with Notice” or “Summons and Complaint” form. The latter form will allow you to set out specific details that the simple Summons form does not allow for. You will then take this down to the county clerk and file it, which will cost you $210. You’ll also want to bring a self-addressed, stamped post card, which they’ll send you later to let you know that your Judgment is ready.

Next, a copy of these papers will need to be served to your spouse within 120 days of your filing date. Anyone who knows your spouse can serve the papers, or you can get a professional to do it. The papers must not be served on a Sunday, and the person who serves the papers must file an “Affidavit of Service” after the deed is done.

At this point, your spouse should complete and sign an Affidavit of Defendant form, which is located in your divorce packet. This form will tell the court that your spouse agrees both to the proceedings and to the terms of your divorce. It is at this point that many “uncontested” divorces begin to fall apart; as a plaintiff often learns that the defendant isn’t on the same page after all. This can sometimes happen after the spouse has had time to discuss the matter with family or friends, who may convince him or her that he or she is not getting a good deal. If there’s any disagreement your “uncontested” divorce becomes a contested divorce in short order, so contact an attorney right away.

If the spouse actually does consent both to the proceedings of the divorce and to the terms of the divorce then you will complete and file the remaining forms in your packet. This will cost you another $125.

Finally, you will wait until your Judgment of Divorce is ready. Go down to the courthouse, pick up a copy of the document (a copy will cost you $8.00) and store it in a safe place. Congratulations, you have just made it through a very rare event…a true uncontested New York divorce.

How do I get a divorce if I can’t locate my spouse?

If you have made a diligent effort to locate your spouse you can generally obtain a divorce by publication with the consent of the court (see: “How do I get a divorce by publication,” above).

Does my spouse need to be personally served with papers in a divorce or family court case?

You certainly don’t have to personally walk up to your spouse and serve him with papers. Anyone who knows the spouse may serve him or her with papers, so long as that person does not do it on a Sunday. You may also obtain the services of a professional process server.

If you know where your spouse is then he or she must be served before the divorce can proceed. An Affidavit of Service must be filed no more than 120 days after your divorce papers are filed. If you do not know where your spouse is then you must make a diligent effort to find him or her, as defined by the court. If your spouse has abandoned you and you have no idea where he or she is then it’s best to reach out to an attorney before attempting to file for a divorce, since proving that your spouse cannot be located is not as straightforward as it might seem.

What will happen to the house and property we share jointly in a divorce case?

The need to divide assets is one reason why divorce cases are rarely simple. It’s impossible to tell you exactly what will happen in a few paragraphs, since it depends on the specifics of your unique case.

We can tell you that the court always seeks to divide assets in an “equitable fashion.” It is very important for you to understand that “equitable” does not mean “equal.” An “equal” division would imply that assets are always divided 50/50, but that simply is not the case.

The court will need to understand many facts about the marriage in order to determine what is “equitable,” such as the income and property of each spouse at the time of the marriage, the length of the marriage, the age and health of both spouse, whether or not one spouse needs the home or other marital property to care for children in his or her custody, the contribution of the spouse to the household, and the loss of any inheritance or pension benefits. Keep in mind that who is at “fault” for the divorce has absolutely no bearing on equitable distribution. New York is a “no-fault” divorce state. That means that you don’t necessarily have an edge if your spouse has done wrong, even if, for example, you can prove that your spouse committed adultery.

There is virtually no such thing as an “open and shut case” in the division of marital property unless you and your spouse truly agree on a point-by-point plan for dividing these assets.

Note that the courts will only divide marital property, but the definition of “marital property” and “separate property” is, again, not always as straightforward as people think that it is. For example, it’s possible for separate property to become marital property. For example, an inheritance that you receive is separate property at the moment that you receive it. You then turn around and use the inheritance to purchase a house for you and your spouse. The home is marital property, and now, so is the money that went into purchasing the home.

As for the home itself, several things might happen. Exclusive use of the home may be granted to one spouse. The court may also allow one spouse to buy the other spouse out. Finally, the court may force the sale of the home so that the value of the home is reverted to cash, which would be distributed along with any other marital property in the final divorce decree.

Contact a family law attorney right away if you are concerned about the fate of any of your assets.

What is spousal support, how is it calculated, and who has to pay it?

Spousal support is a payment that one spouse makes to another in order to ensure that the spouse is able to live a similar lifestyle to the one enjoyed prior to the divorce. Spousal support (also known as “alimony” or “maintenance”) usually only comes up when one spouse is unable to support himself or herself. You can expect your spouse to be awarded support if you have been the primary breadwinner in the marriage and your spouse is unable to obtain employment, either in the short-term or the long-term.

You might be looking at paying spousal support if your spouse is disabled, for example, or if your spouse has been out of the workforce for decades because he or she was acting as a homemaker. The length of the marriage will also play a role in determining whether spousal support is appropriate, as will the age of the spouse.

There are two kinds of spousal support. The first is temporary, and is designed to help a spouse get back on his or her feet. For example, the spouse might be expected to receive job training or an education while receiving the support. The support would end when the spouse is able to support himself or herself.

The second sort of spousal support is paid either for life or until your spouse remarries. In some cases, you might be able to terminate spousal support in the event that your spouse is “habitually” living with someone else. However, this is not automatic, and you would have to petition the court to present the facts of these life changes before you could stop paying support.

The court uses a pre-determined formula to determine spousal support awards.

What if my spouse and I can’t agree to get divorced?

Nobody can force you to stay married, not even your spouse. When you file a Summons with Notice or a Summons and Complaint you are putting your spouse on notice that you are seeking a divorce. You don’t have to file any statement that your spouse agrees to get divorced. You have to file an Affidavit of Service to prove your spouse was put on notice.

In the past, a spouse might have been able to contest the grounds for divorce, but in 2010 New York became a “no-fault” state. You can file on the grounds that your marriage is irretrievably broken. Once your spouse is served he or she will have to resign himself or herself to getting a divorce. Tackling the major issues of the divorce is all that remains.

This is not to say that your spouse can’t find ways to complicate matters, forcing litigation on all of these major issues in an effort to gain revenge, to buy time to convince you to change your mind, or simply because communication has broken down to the point where coming to any agreement on any of these issues is initially impossible. Divorcing an unwilling spouse is possible, but it won’t necessarily be easy.

What should I look for in a divorce attorney?

Two things.

First, you should look for someone with an approach that matches the approach you want to take. If you want to fight every step of the way for every last penny and advantage you can get then you need a litigator. If you want to come to an equitable, livable settlement within a reasonable timeframe then you need someone who is willing to take a more collaborative approach. This is a very personal decision, though you should understand the risks and benefits of each approach before making your decision.

Second, you should look for someone who is willing to give you bad news. A divorce attorney who only tells you what you want to hear is utterly useless to you. Most divorces generate situations that are less than ideal in some form or fashion. You need an attorney who will explain everything to you very clearly, and who can give you the bad news and advice about that bad news without flinching.

See: “How do I find a good New York divorce attorney” for more information. 


The Gilmer Law Firm, PLLC assists clients in Brooklyn, Kings County, New York.



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