Should I file an uncontested no fault divorce or contested divorce in New York State?
By Brooklyn, New York Uncontested No Fault Lawyer. An uncontested divorce in New York State 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. As a Brooklyn, New York Divorce attorney, I have been very successful filing the paperwork necessary to resolve property and child issues, allowing my clients to quickly obtain an uncontested divorce.
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. This means your divorce will be contested.
There are others issues you need to consider prior to filing the forms for 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 are unsure as to whether your divorce will be contested or uncontested, feel free to give me a call! 718 864 2011 for a free phone consultation.
What is an Uncontested Divorce in New York?
An uncontested divorce occurs when you and your spouse do not disagree about any terms of the divorce like division of property, child custody and support, or spousal support. An uncontested divorce also occurs if your spouse, after properly served with a Summons and Complaint, fails to appear in the divorce action.
Some people file a divorce thinking that the proceeding will be uncontested but later find out that their spouse is choosing to fight the case. My office handles uncontested as well as contested divorces, so please contact me if you think your spouse is going to fight the divorce, or if there are unresolved issues involving marital property, custody or support.
Individuals who are seeking a divorce should have the benefit of a divorce lawyer’s expertise and advice regarding issues of marital property, custody or support (and other issues such as insurance benefits, orders of protection etc.) even if they believe the case is going to be uncontested. If you do not seek an attorney’s advice prior to filing an uncontested divorce you may lose certain rights that stem from the marital relationship.
For example, if you file an uncontested divorce, and your spouse is entitled to a pension at his or her job, and do not seek your share during the divorce, you can very well lose your right to share in that pension. Another example is if your spouse owned a property prior to the marriage and you made significant financial contributions to this property during the marriage, you might be entitled to a reward based upon the increased value of the home, so long as the home increased in value because of the spouses contributions. The problem is that the property probably will not be in your name if it was pre-marital and the submission of uncontested divorce papers will prevent you from seeking this award.
In order to be granted a divorce in New York State, the Plaintiff has to plead grounds for the divorce. There are a number of grounds that can be plead in a Divorce proceeding. The most popular ground for divorce is irretrievable breakdown of the marriage, which is commonly referred to as a no-fault divorce.
In addition, if you do not know where your spouse is and can’t have the divorce summons served, you might have to seek alternate modes of service. A worst case scenario is that you may have to ask the court permission to file a Divorce by Publication, a much more expensive divorce option. My office, however, specializes in divorces by publication.
Also you cannot file for a divorce in New York state if you do not meet the state’s residency requirements, have a foreign divorce granted, if there is another matrimonial action pending or if you are under 18 years of age. To file for a divorce in New York you must satisfy one of the following residency requirements:
- Your spouse must have been living in New York State for a continuous period of at least two years immediately before the date you start your divorce action; or
- You or your spouse must both be living in the State of New York on the date that the divorce is started and for a continuous period of one year immediately before the date the divorce action is started and the marriage was performed in New York or you lived within this state as married persons.
- You or spouse must have been living in New York State for a continuous period of at least one year before you start your divorce and the grounds for the divorce must have occurred in New York.
- You and your spouse must be residents of New York State on the date you file your divorce action and the grounds for divorce must have occurred in New York.
If you have any further questions about an Uncontested Divorce, please contact me at 718-864-2011 for a free divorce consultation.
How Do I File for Divorce in New York?
Filing for divorce on grounds of “No Fault” in New York is the newest and quickest method to end a marriage with neither party being at fault. NY divorce law stipulates one spouse must state within the divorce documents that the marriage has been “irretrievably broken for a period of at least 6 months.”
Prior to the 2010 change of law which added No Fault Divorce to New York, the Uncontested Divorce existed but the party seeking the divorce had to assert grounds in the divorce paperwork. Now, with the new No-Fault law, people can get a divorce without citing grounds. An Uncontested Divorce is when both spouses agree on the structure of their separation regarding assets, child custody, property, taxes, etc…
When a resident of New York is looking to divorce their spouse a Summons and Complaint is filed with the court clerk. The person who starts the divorce proceeding by filing for a divorce in New York is called the Plaintiff. A Summons is a legal document which gives notice to the other spouse (the Defendant) that an action of divorce, annulment or separation has been started. The Complaint contains specific details for the relief requested in the Summons. Examples of relief include: grounds for divorce, grounds for separation, grounds for annulment; child custody, child support, visitation; equitable distribution of marital property such as real estate or motor vehicle distribution; health insurance; life insurance; attorney fees; possession of marital property; and orders of protection.
Divorce Residency Requirements
Residency requirements must be meet prior to filing divorce in the State of New York. Domestic Relations Law §230 stipulates one of the following must be satisfied:
- The marriage took place in New York and one spouse was a resident of New York prior and continuously for one year before the marriage took place; OR
- The married couple lived as husband and wife in New York and one spouse is a resident and resides in NY for a continuous period of at least one (1) year immediately prior to the commencement of the action; OR
- Grounds for divorce took place in NY and one or both spouses are residents and reside in NY for a continuous period of at least one (1) year immediately prior to the commencement of the action; OR
- If no marriage ceremony took place in the State of New York and neither spouse lived together as husband and wife in NY, then one of the spouses must presently live in NYC and have done so for a continuous period of at least two (2) years immediately prior to the start of the divorce proceedings.
Divorce Steps in New York
- Plaintiff files a Summons and Complaint or Summons with Notice with court clerk.
- Plaintiff pays filing fee and index number fee for a total of $210, payable to the court clerk.
- Plaintiff then serves the Defendant (in-hand service) with a copy of the Summons and Complaint or Summons with Notice within 120 days of the filing date.
- An affidavit of personal service must be filed in court within 120 days after the Summons is served.
- If a Notice of No Necessity is not filed by the Defendant or by both parties, then the Plaintiff has 45 days to file the Request for Judicial Intervention or RJI.
- If the Notice of No Necessity is filed by both parties the Plaintiff has 120 days to file the RJI.
- Ten days prior to the preliminary conference, both parties fill out and exchange amongst each other a Net Worth Statement.
- At the preliminary conference, which is held no later than 45 days after the Request for Judicial Intervention assignment, both Plaintiff and Defendant must be present.
- After the preliminary conference a compliance conference is scheduled for both parties to attend unless the court decides differently.
- Note of Issue is filed after the compliance conference is scheduled.
- A trial date is provided by the court and scheduled no later than 6 months from the preliminary conference date.
- Settlement discussions should take place prior to a trial date.
- If the case is greatly contested or no settlement is reachable, a trial will take place.
During divorce proceedings things can begin to get aggressive from one side or both sides. In order to ensure your rights are not violated, hiring a NY family law and litigation attorney, such as Attorney George M. Gilmer, is the first step to take. Before beginning any legal action against a spouse or if you have received a divorce Summons and Complaint from your spouse, contact Attorney Gilmer to advise you on the correct legal action to take.
George M. Gilmer, Esq.
26 Court Street
Brooklyn, New York 11242
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Attorney Gilmer has experience handling Immigration Applications and Immigration Green Card Visa disputes in New York. Hiring a NY Immigration lawyer with his background is key to ensuring your rights are protected by the United States and U.S. Citizenship and Immigration Services.
George M. Gilmer, Esq.
26 Court Street
Brooklyn, New York 11242
How do I get Alimony (Maintenance) in my NY Divorce Proceeding?
One of the most frequent questions asked of a New York family divorce attorney is regarding alimony or maintenance (this is what it is called now). Each divorce action consists of the same legal process, but spousal incomes often vary. Calculating both spouses income is only the beginning to the maintenance determination. Other elements are involved, for example; how long each spouse held employment or contributed to the household bills each month, children born in the marriage, and if so, who will have custody of the children. A skilled New York City divorce attorney is necessary to advise a client exactly how the law is applied to their particular situation and which options are available.
Often in divorces, a spouse is ordered to pay maintenance (also called spousal support or maintenance) to the other spouse. The idea of maintenance seems simple; one former spouse helps to financially support the other, but it’s hardly ever that stress-free. In NYC divorce cases, there are many elements the court of your jurisdiction will look at when deciding if maintenance is even appropriate. Other questions must be answered, such as, how much maintenance should be awarded, and how long must the spouse be paid the awarded maintenance.
The laws of the State of New York give the family courts direction on how maintenance is awarded, but the judge has extensive authority when deciding whether or not to award maintenance. Maintenance, in the State of New York, is calculated by numerous elements.
- Length of marriage;
- Lifestyle during the marriage;
- Current income;
- Income during the marriage, if any;
- Earning capability;
- Number of jobs held during marriage; and
- Length of employment.
The State of New York has two different types of maintenance. Based on the circumstances of the dependent spouse, the non-dependent spouse maybe required to pay one or both of the following types of maintenance:
- Temporary (“Pendente lite”) maintenance is paid while the divorce case is pending and intended to provide the supported spouse with immediate financial need by taking into consideration the supported spouse’s reasonable needs and the pre-divorce standard of living. Temporary maintenance ends when a final order of maintenance is made by a NY family law judge.
- Post-divorce maintenance is awarded to the supported spouse after the divorce action. Post-divorce maintenance ends by the death of either spouse, the remarriage of the supported spouse or if the supported spouse is habitually living with someone or holding themselves out to be husband and wife with that person.
Termination of alimony or maintenance can be awarded through a motion to the NY family court that awarded the original judgment. Post-divorce maintenance awards are final orders by the court and can either be “durational” or “non-durational.”
“Durational” maintenance is paid for a fixed period of time. This is based on the idea that the receiving spouse will become self-supporting after several years.
“Non-durational” maintenance, also called lifetime maintenance, will be paid for the supported spouse’s lifetime. While rare, courts have awarded non-durational maintenance in special circumstances, for example where one spouse is older, unlikely to find employment or has an illness.
Never attempt to go through the divorce process alone. Too many times, people believe they can’t afford to hire legal counsel without even acquiring quotes on representation from a skilled attorney. Then they forgo hiring one, going to the first court appearance unrepresented, many things transpire that they do not understand, placing them at an extreme tactical disadvantage for the rest of the case. Other times, spouses are getting along so well they mistakenly believe handling the divorce without an attorney is an economical and reasonable option. This is the exact opposite of an economical and reasonable option and the wrong way to handle a divorce action. Cooperation from both sides is a mature way of managing such an emotional matter, but months or years later one of those parties may regret a decision made and will not have any legal recourse. Other concerns may arise during the divorce litigation process such as:
- Living arrangement (who gets to stay in the home);
- Prenuptial agreement;
- Paternity of a child;
- Legal separation;
- Contested divorce;
- Uncontested divorce;
- Custody of children;
- Child support;
- Division of marital and non-marital property; or
New York City divorce Attorney George Gilmer works closely with his clients to determine the best legal solution to any scenario that may pop up in a divorce proceeding. The best interest of both parties is to have a skilled divorce lawyer on their side to protect their legal rights relating to alimony (maintenance), child support, and property division.
George M. Gilmer, Esq.
26 Court Street
Brooklyn, New York 11242