The Gilmer Law Firm, PLLC represents clients in Brooklyn and throughout the New York City area in both contested and uncontested divorces. Lead attorney George Gilmer has in-depth knowledge of the New York Domestic Relations Law and works with clients from all walks of life, including members of the LGBTQ community.
Ending a marriage is never easy, but a contested divorce presents greater challenges than an uncontested divorce. Trust our Brooklyn, New York divorce lawyer at the Gilmer Law Firm, PLLC, to help you explore all your options and guide you through the process so that you can move on with the next chapter of your life. To learn whether a contested or uncontested divorce is the best solution for you and your family, contact us today for a consultation.
New York Divorce Preliminary Requirements
Whether you get a contested or uncontested divorce, New York has specific legal requirements for all divorces. Before you can file for a dissolution of your marriage, you must meet New York’s residency requirements and decide on a legal reason, or grounds, for divorce.;
New York Residency Requirements
You must meet New York’s residency requirements before you can file for divorce. Your or your spouse must fall within one of the following categories:
- You or your spouse lived in New York for at least two years before filing;
- Both spouses lived in New York at the time of filing, and the cause of the divorce happened in New York; or
- Either spouse lived in New York for one year before the filing; and
- You were married in New York;
- You lived together in New York during the marriage; or
- The reason for the divorce happened in New York.
There may be alternative ways to meet New York’s residency requirements, particularly if you want a military divorce. Discuss your situation with our Brooklyn, New York, divorce lawyer to see if you meet the residency requirements.;
Grounds for Divorce
All divorces in New York must also state a legal reason or grounds for the divorce. New York has both no-fault and fault-based divorces.
In a no-fault divorce, the divorce papers do not state that either party is to blame for the end of the marriage. You simply tell the court that there’s an “irretrievable breakdown of the marriage” for at least six months, and there’s no possibility of reconciliation. This is really a way of saying that the couple no longer wants to be married, and the spouses are unlikely to reunite.Those who hope for an uncontested divorce are more likely to use no-fault grounds.;You can also file for divorce after a legal separation agreement or separation judgment. Choosing no-fault grounds is a way to avoid blaming one spouse for the marriage’s end.
New York also has fault-based grounds for divorce where you allege that one of the spouse’s actions is the cause of the divorce. These grounds include:
- Cruel and inhuman treatment, including physical, mental, and emotional violence;
- Abandonment for at least one year;
- Imprisonment for three years or more; and
Although alleging one of these grounds could result in a contested divorce, sometimes it is in your best interest to state one of these grounds. One of our seasoned lawyers can help you make this decision.
Can I File for an Uncontested Divorce?
An uncontested divorce occurs when you want to start a divorce against your spouse, and your spouse does not contest the divorce in any way. Essentially, you can get an uncontested divorce if you and your spouse can agree on how to resolve all of the significant issues—like how to divide your assets and debts, etc. Although you’ll have to officially file the divorce paperwork, your court appearances will be minimal in an uncontested divorce. Instead, you and your spouse can negotiate and file a divorce agreement to end your marriage. As long as the agreed-upon resolution doesn’t violate the law or public policy, the judge will likely sign off on it. Complicating factors 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 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 other issues you need to consider prior to applying for or agreeing to an uncontested divorce, such as:
- Do you need an order of protection to help keep you safe from your spouse?
- Do you need continued financial support (maintenance) from your spouse?
- Do you need health insurance?
- If you and your spouse owned things together and/or owe money together, how should the property and debts be divided?
- Does your spouse have a pension or other financial retirement plan?
We can help you think through these and other important issues and take the legal steps to get you what you want. We strongly suggest that you give serious thought to contacting our divorce lawyer in Brooklyn, New York, prior to starting your divorce.
How Does an Uncontested Divorce Work in New York?
An uncontested divorce is relatively straightforward: the couple agrees to the divorce and resolves the key issues, such as:
- Division of marital property;
- Child custody and parenting time;
- Child support; and
- Whether one of the spouses will pay spousal maintenance (alimony) to the other.
Also, the spouses must agree on the grounds for divorce. Because New York State law provides for no-fault divorce, the reason most commonly agreed to is the “irretrievable breakdown of the marriage.” This is really a way of saying that the couple no longer wants to be married and the spouses are unlikely to reunite. A divorce is also deemed uncontested when one spouse files for divorce and the other fails to appear for the divorce proceeding. This is called a default divorce.
One of the benefits of an uncontested divorce is that it does not require a trial, which can save time and money. In addition, the issues surrounding the divorce and other family matters remain private. An uncontested divorce can also minimize some of the anger and resentment that comes with a marital breakup.
An uncontested divorce is still a court-supervised proceeding that requires preparing and filing paperwork. This includes a Summons and Complaint, which must be filed in the county in which you reside. The divorce papers must also be served on the other spouse, who must then sign and return the Affidavit of Defendant.
Once the affidavit is received, the divorce case will be placed on the court’s calendar. But there are other forms to complete and file, including:
- Certificate of Dissolution of Marriage; and
- Divorce and Child Support Summary Form – if minor children are involved.
These papers are then submitted to the court for the judge’s review. Once the divorce is approved, the judge will sign the Judgment of Divorce, which must then be filed in the County Clerk’s Office and served on the divorced spouse.
As you can see, there are a number of steps involved in an uncontested divorce and complicated legal papers to complete. For this reason, it is wise to consult with an experienced Brooklyn, New York divorce lawyer.
A Contested Divorce Is More Complicated Than an Uncontested Divorce
A contested divorce arises when the spouses disagree on at least one major aspect of the divorce at the time of filing. This type of divorce also requires legal papers to be filed, but there are more court appearances required, and the process takes longer than an uncontested divorce. The best way to navigate a contested divorce is to have the compassionate representation our firm provides.
A contested divorce starts when one of the spouses (petitioner) files a Summons and Complaint. The petitioner must serve the summons on the other spouse (the defendant) within 120 days of filing. The summons is typically served by a process server, who must also file an Affidavit of Service within 30 days of serving the summons.
The defendant has 20 to 30 days to respond with a legal document known as an Answer. Once the petitioner receives the Answer, he or she must then file a Request for Judicial Intervention or RJI. This document requests the court to schedule a Preliminary Conference, which is usually held within 45 days.
During the Preliminary Conference, the judge will determine which issues need to be considered. Both spouses must provide a statement of net worth at least 10 days before the conference. While the judge may ask the lawyers for both spouses to consider a settlement, this is unlikely.
So, the case will proceed to the discovery phase, which involves each lawyer collecting evidence to support their case. Discovery must be completed within 6 months of the preliminary conference. The trial is the last step in an uncontested divorce.
The judge will consider all the testimony, evidence, and arguments and issue a written order finalizing the divorce (decree). If neither party appeals the decision, the divorce decree becomes final.
Contact Our Experienced Brooklyn Divorce Lawyer
Regardless of whether your divorce is contested or uncontested, it is wise to have an experienced Brooklyn divorce attorney at your side. We also handle other types of family law cases, including:
- Family law mediation
- Cohabitation agreements
- Restraining order
- Restraining order defense
- Temporary emergency custody
At the Gilmer Law Firm, PLLC, we are widely known for helping families navigate difficult transitions. Once you become our client, we will offer you knowledge, and compassion, and put your mind at ease. Contact our attorney today to learn how we can help.
For more information: