If you and your spouse can agree to move forward with an uncontested divorce in New York, you’ll save a lot of time, money, stress and aggravation.
But what exactly is an uncontested divorce? And what does the process entail?
I sat down with New York family law attorney Robert Pollack to discuss exactly what you need to know if you decide to go this route.
Let’s get started.
What is an uncontested divorce in New York?
An uncontested divorce is a case that’s submitted to the court for judgment where all the issues have been agreed upon by you and your spouse, without any remaining issues for the court to decide.
What’s the difference between a contested divorce and an uncontested divorce?
In an uncontested divorce, you and your spouse will decide on all issues such as child custody, child parenting time or visitation, child support, alimony, division of assets such as a house, and pensions or other retirement accounts.
Your agreement will also cover the allocation of debt between the two of you, healthcare insurance, what happens with large assets like cars, and well as car insurance. Pretty much anything that arises out of your marriage has to be resolved.
But several of these issues don’t apply in some marriages.
For example, if you were in a short-term marriage, where you’re young, or just made a mistake, there’s very little in the way of marital issues to be decided, except for the fact that you’re married and want to dissolve that union.
If you have no children, and you haven’t been married very long, even if both spouses have significantly different salaries, there probably won’t be an issue of alimony.
But if you’re involved in a contested divorce, that’s a whole different story. That is a divorce where you can’t resolve one or more issues. When there’s not complete agreement, there’s no settlement agreement, which is the basis for an uncontested divorce.
If there’s no settlement agreement, you have a contested divorce. When all issues are resolved, then an agreement can be signed. At that point, it converts back to an uncontested divorce.
You can waste a lot of money and time trying to resolve these issues. You can come to the table, or go to court and say that “We agree on this and that, but here’s the list of everything that we don’t agree on.”
So your case is contested, and until all those issues are resolved, you’ll remain in court. Or, you’re going to end up trying the case.
Which forms need to be filed for an uncontested divorce in New York?
There are several possible forms are used.
You have to file the pleadings. This includes the summons, the complaint, the answer, and a reply to a counterclaim if one is alleged.
There has to be an affidavit of the plaintiff, presenting the facts and asking for the divorce. The other side will need to submit an affidavit from the defendant giving the facts, consenting to the divorce.
At some point, you will submit a settlement agreement, resolving all the issues and signed by both parties. In New York, it has to be notarized in a very special way called an acknowledgment. It’s much more important than a notary because the court wants to make sure that the people who are signing it recognize the importance of what they’re doing.
If you were married in a religious ceremony as opposed to just a civil ceremony, there has to be something called an Affidavit of Removal of Barriers to Remarriage. Because of the separation of church and state, the court cannot get involved in a religious divorce.
For example, in the Jewish religion, when people get divorced in a civil action, many Jewish people also want to get something called a “get.” That’s a Hebrew word, and that is an effectively a Jewish annulment.
If people are Orthodox, they are pretty much shunned from the community until they are annulled under Jewish law, in addition to the civil divorce.
The same thing holds true if you are Catholic. You may want an annulment under your religion, but the other side has to cooperate with this. New York compels people to sign an affidavit, promising that if their partner wants a religious divorce or a religious annulment, that they will cooperate.
If there’s child support, a Child Support Worksheet needs to be completed. This is a mathematical calculation sheet that sets forth the factors that are listed in the Child Support Standards Act, which is a federal law that all states sign on to.
It goes through calculations that will determine how much child support you’ll need to pay if you’re the non-custodial parent. Also, it indicates the allocation of what are called child support add-ons, based upon pro-rata comparisons between you and your spouse’s incomes.
Add-ons are things such as unreimbursed medical expenses, childcare, educational expenses, special needs–things other than food, shelter, and clothing. Food, shelter, and clothing are what essential child support is supposed to cover.
You have to also provide an Affirmation or an Affidavit of Regularity. If an attorney is doing an uncontested divorce, it’s called an affirmation. If a non-attorney, it’s called affidavit.
Affirmation of Regularity, or Affidavit of Regularity, tells the court, in a concise synopsis, the procedural history of your case and some basic background information that’s relevant to the court. You or your attorney are asking the court to grant you a divorce.
What are some of the other forms that may be required?
There’s an order called a Qualified Medical Child Support Order. It is an order that the court will sign that gets served on the health insurance company for the health insurance plan that’s going to cover your child or children. That is because there is a mandate that children will be covered by health insurance. To enforce that, the court serves an order on the actual health insurance plan.
A Findings of Fact and Conclusions of Law is the biggest document in the whole package. That is based upon the affidavits that the parties submit. Based on the Affirmation of Regularity that’s submitted, along with with the pleadings such as the complaint or the answer, and the settlement agreement, the court finds facts. It concludes, based upon those facts, that the court can grant you a judgment of divorce.
Those documents are similar in their effect to in-court testimony under oath. But you don’t do that on an uncontested divorce. It’s done in the papers, and those papers substitute for testimony. When the court signs off on the Findings of Fact and Conclusions of Law, it says, “We can now issue a judgment.”
Then you have to furnish the judgment to the court. The court does not draft the judgment of divorce. Or, in some states, it’s called the divorce decree. It is the actual document that bears the embossed stamp of the court. That is what actually is the legal proof of your divorce. It also turns the agreement that both spouses signed into an enforceable order of the court.
What are the steps for an uncontested divorce in New York?
The general process starts with the plaintiff filing a summons in the Supreme Court. It’s the Supreme Court in New York. There’s a New York Supreme Court in all 62 counties in the state.
The Supreme Court is the court of general jurisdiction. It is the only court that has the authority to grant you a divorce. Some states call it Family Court. Some states have a combined Family Court and Supreme Court–type court for divorces and other Family Court matters for people that are not married.
In New York, there are separate courts. The Family Court does not have anything to do with divorce.
Your summons is filed with the county clerk and you pay a fee of $210. That purchases your index number. That gives the case a number. In some states, it’s called a docket number. Overall, an uncontested divorce costs at least $335 in total court and filing fees.
Then, if you’re the spouse who filed, you have to serve the summons on your spouse who now becomes the defendant. You have 120 days to do so. However, most people serve it right away. And it has to be done in-hand, through personal service. You cannot mail it or put it on your spouse’s door. It has to be done by a person who’s not a party to the divorce and is over 18. People generally use a process server or a friend.
The person who serves the papers on defendant must fill out the “Affidavit of Service” and return it to the plaintiff signed and notarized. This is proof that the papers were delivered to the defendant properly.
After that, the list of documents I mentioned comes into play. That’s because once the summons is served, the court has jurisdiction over the case.
How much does an uncontested divorce in New York typically cost?
Most attorneys charge somewhere in the range between $1,500 and $3,500 for legal fees in an uncontested divorce. But that will vary based upon the complexity of that divorce. Even though it’s uncontested, it can be quite complicated.
Like I said before, if you’re only married a short time, and you’re young, haven’t acquired much, and don’t have children, that’s going to be a much simpler case than if you’ve been married 40 years, and have children and house and investments and all sorts of other things that just come out of being married for so long.
Even as an uncontested divorce, that would be much more expensive. It could well exceed $3,500. But I would say an average in New York for a middle-complex type of case is $2500. Your court fees are always on top of that. They run about $400.
How long does an uncontested divorce take in NY?
If there’s an attorney involved, it could be quite a few months before your file is complete and ready to go into court. But once it’s submitted to the court, in my county, which is Nassau County on Long Island, it generally takes two to three months for a divorce to become final.
But some other counties such as Queens County, which is part of New York City, take nine months to a year. It all depends upon the county that you submit in, the number of cases that they have pending, and the number of judges available to deal with uncontested divorces.
Do you need a lawyer for an uncontested divorce?
It depends on the complexity of your case. You’re not required to have a lawyer. You’re not even required to have a lawyer in a contested divorce.
But you would be silly not to. Divorce is a very complicated law.
Specifically, as far as an uncontested divorce goes, the court has an uncontested divorce packet available online or in-person at the court, where you can pick up all the forms.
Lawyers don’t use forms. We draft our own documents. But the court has generic forms that you can use, and they provide instructions–no legal advice, but guidelines.
You can try doing it without a lawyer.
I get calls many times during the year where people will have started an uncontested divorce on their own. Then they realize that they’re in over their heads, and they want to get a lawyer to pick up where they dropped the ball.
But there are cases where people handle uncontested divorces successfully by themselves. Frankly, it all goes again back to how complex it has to be, based upon the facts and circumstances of your case, and how long your marriage has lasted.
What are the pros and cons of an uncontested divorce?
It’s always nice to have an uncontested divorce. Just by the very nature of the word “uncontested,” it means that you’re generally more amicable towards each other. There’s less drama. There’s less acrimony. And if you have children going the uncontested route is better for them as well.
Uncontested divorces don’t go into court. You’re saving a lot of money, and usually, save a lot of time. The judgment is issued faster in an uncontested divorce than it is in a contested divorce.