When a person decides to get a divorce, one important thing he/she needs to think about is whether it will be a contested divorce or an uncontested divorce.
There are 2 kinds of uncontested divorce:
(1) Both parties agree to sign all the divorce papers. And both parties agree on all issues relating to the divorce, including property division, maintenance if any, child custody, child visitation and child support.
(2) The defendant in the divorce action does not answer the divorce papers in the action, and a certain period of time has passed. This is known as “Defendant defaulted.”
A contested divorce is where the couple cannot agree on any one or more the issues involved in a divorce In a contested divorce, both parties are usually represented by an attorney. The attorney advises the client about his/her rights, negotiates with the opposition, and represents and fight for the client in court hearings.
Even if both spouses agree to a divorce, there are additional requirements that must be fulfilled before a court in New York will grant a divorce.
One of these requirements is the grounds (reason) for divorce.
Before no-fault divorce was introduced in New York state in the year 2010, couples seeking uncontested divorce had to pick a fault-based ground. These fault-based grounds included, for example, abandonment, cruelty or adultery.
Since 2010, couples may divorce using the ground of irretrievable breakdown for 6 months or more (Irretrievable Breakdown). Today, this is the most often used ground for divorce.
Another divorce requirement in New York state is the residency requirement. Generally speaking, one or both parties must reside in New York state for a certain period of time before a court will allow the divorce case to proceed. One of the reasons for this rule is to prevent a divorce litigant from picking a state of his choosing to file a divorce which may make it inconvenient for the other party to attend court proceedings.
The residency requirement can be satisfied by either one of these methods:
(1) either party has resided in New York state for 2 years or more immediately before the commencement of divorce action.
(2) either party has resided in New York state for 1 years or more immediately before the commencement of divorce action, AND either:
(a) the parties were married in New York state,
(b) the parties have resided as married couple in New York state, or
(c) the cause of action occurred in New York state.
(3) both parties are residents of New York state at the commencement of divorce action, AND the cause of action occurred in New York.
One thing worth discussing here is the issue regarding “cause of action.” Among the various grounds for divorce, one of them, Irretrievable Breakdown, has been ruled to be not a cause of action because there is no defense to this ground (See Palermo v. Palermo 100 AD3d 1453 (4th Dept. 2012)). That is to say, Irretrievable Breakdown can be used as a ground for divorce, but for the purposes of the residency requirement, Irretrievable cannot serve as a cause of action.
Getting an uncontested divorce is not difficult if the attorney handling the case is experienced, diligent and professional. In New York State, a divorce decree can only be issued by a court of law. And only an attorney licensed to practice law may represent a client in a court of law. The documents submitted to the court must be carefully drafted and reviewed. The signing of the documents involved must follow certain procedures. And certain notices/documents must be given to one or both parties as required by law. If the attorney handling the case does not follow all proper procedures, even if a divorce judgment is granted, the judgment can be overturned if later challenged by one of the parties involved. Therefore, an inexperienced or careless attorney may cause unnecessary delays and obstacles to a divorce case.
Disclaimer: this article should not be construed as legal advice. Each legal case should be analyzed based on its own facts and circumstances.<- Previous Next ->