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Uncontested Divorce

You may wonder if an uncontested divorce is right for you. If you and your spouse can agree on the basic tenets of divorce, such as child custody, spousal support, and property division, you may be good candidates for an uncontested divorce. Two things are essential for this kind of divorce to be successful – you and your spouse must be able to work cooperatively to reach an agreement, and your attorney must be skilled at negotiating the complexities of a divorce.

In an uncontested divorce, the spouses agree on all of the issues required to end their marriage, so there's no need for the judge to hold a trial. In New York, an uncontested divorce is where both spouses agree to end their marriage and have settled all of the divorce-related issues in their case, such as division of property and alimony.

How is an annulment different from a divorce?

Unlike a divorce that ends a valid marriage, an annulment establishes that the marriage is not legally valid, and the grounds for annulment are different from a divorce. To get an annulment, one must prove ONE of the following:

  • Bigamy: one of the parties was still married to someone else at the time of the second marriage.
  • Physical Incapacity. Either spouse was incurably unable to have sexual intercourse at the time of the marriage.
  • After marriage, either spouse becomes incurably insane for five (5) years or more.
  • Mental Incapacity. Spouse is unable to understand the nature, effect and consequences of marriage because of mental incapacity.
  • Spouse agreed to marry as a result of force or duress by the other.
  • Fraud (most common ground): the consent to marry was obtained by fraud that would have deceived an ordinarily prudent person and was material to obtaining the other party's consent. The fraud must go to the essence of the marriage contract. Concealment of a material fact may constitute fraud.

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Starting the Divorce…

You will need to buy an Index Number at the County Clerk's Office. If you are filing for an uncontested divorce, there are forms available for your use if you have no children under 21 and your marriage has been over for at least 6 months. After the papers have been signed and notarized, it is a good practice to make copies of all papers. The following documents are submitted to the County Clerk's Office to commence:

  • Summons With Notice or Summons and Complaint
  • Notice of Automatic Orders
  • Notice Concerning Continuation of Health Care Coverage
  • Settlement Agreement, if you have one.

Where do I file the Divorce?

In New York State the Supreme Court is the only court that handles divorce cases.

Is New York a No-Fault State?

New York allows for the “no-fault” ground of irretrievable breakdown of the marriage for at least six months before filing for divorce. “Irretrievable breakdown of the marriage” means that you and your spouse no longer want to be married, and it's not likely that you and your spouse will get back together. (N.Y. Dom. Rel. § 170 (7).)

Benefits of an Uncontested Divorce

Since there's no trial, there's no need to hold a hearing or disclose the intimate details of the broken relationship, which makes the process much private, quicker and less expensive than a contested divorce.

Uncontested Divorce Requirements

In New York, one can file for an uncontested divorce when both spouses agree about the following:

  • To divorce
  • The grounds of divorce
  • How to divide marital property and debt.
  • Who gets custody of the children and parenting time for the other parent.
  • Whether the non-custodial parent will pay child support and how much.
  • Whether either spouse will pay spousal support (alimony.)

The Residence Requirement

To able to file for divorce in New York, one must also have satisfied the “residency requirements” of the law. This means that:

  • at least one spouse should have been living in New York for at least two continuous years immediately before filing for divorce, or
  • at least one spouse has been living in New York for at least one continuous year immediately before filing for divorce and,

the couple either got married in New York, or lived in New York as a married couple, or the grounds for your divorce happened in New York. (N.Y. Dom. Rel. § 230.)

The Uncontested Divorce Process

An applicant, who is identified as Plaintiff must complete the following papers to obtain an uncontested divorce in New York:

  • Notice of Automatic Orders
  • Notice Concerning Continuation of Health Care Coverage
  • Summons With Notice (Form UD-1 or UD-1a)
  • Verified Complaint (Form UD-2)
  • Affidavit of Service (Form UD-3)
  • Sworn Statement of Removal of Barriers to Remarriage (Form UD-4) and Affidavit of Service (Form UD-4a)
  • Affirmation of Regularity (Form UD-5)
  • Affidavit of Plaintiff (Form UD-6)
  • Affidavit of Defendant (Form UD-7)
  • Child Support Worksheet (Form UD-8)
  • Support Collection Unit Information Sheet (Form UD-8a)
  • Qualified Medical Child Support Order (“QMCSO”) (Form UD-8b)
  • Note of Issue (Form UD-9)
  • Findings of Fact/Conclusions of Law (Form UD-10)
  • The judgment of Divorce (Form UD-11)
  • Part 130 Certification (Form UD-12)
  • Request for Judicial Intervention (“RJI”) (Form UD-13)
  • Notice of Entry (Form UD-14)
  • Certificate of Dissolution of Marriage

The Summons

The first step in obtaining an uncontested divorce in New York is to purchase an Index Number and to prepare the Summons with Notice or Summons and Verified Complaint. It is necessary to mail these documents to County Clerk accompanied by two copies.

Serving the other spouse

The other spouse, or Defendant, must be served with copies of all documents and the Affidavit of Defendant. It is also a good practice to provide the Defendant with a copy of the instructions on how to fill out the Affidavit of Defendant.

The Affidavit of Defendant must be returned within 20 days if Defendant is in the U.S. or within 30 days if Defendant is overseas. Then, the applicant for divorce or Plaintiff must complete an Affidavit and the person who served the papers must provide an Affidavit of Service. Then, it is possible to place the case on the court's calendar.

Obtain an appearance date…

By placing the case on the court's calendar, Plaintiff gets a court date. To get this date, the following steps are necessary:

The plaintiff must complete Forms UD-3 through UD-13.

  • Sworn Statement of Removal of Barriers to Remarriage (Form UD-4) and Affidavit of Service (Form UD-4a)
  • Affirmation of Regularity (Form UD-5)
  • Affidavit of Plaintiff (Form UD-6)
  • Affidavit of Defendant (Form UD-7)
  • Child Support Worksheet (Form UD-8)
  • Support Collection Unit Information Sheet (Form UD-8a)
  • Qualified Medical Child Support Order (“QMCSO”) (Form UD-8b)
  • Note of Issue (Form UD-9)
  • Findings of Fact/Conclusions of Law (Form UD-10)
  • The judgment of Divorce (Form UD-11)
  • Part 130 Certification (Form UD-12)
  • Request for Judicial Intervention (“RJI”) (Form UD-13)

If there are children together under age 18, the Addendum Form 840M.

The Plaintiff must complete the Certificate of Dissolution of Marriage, the postcard, and the Divorce and Child Support Summary Form, if applicable.

Submit all of your paperwork to the judge.

The judge will review the documents and, if approved, will sign the Judgment of Divorce. After the judge signs the Judgment of Divorce, it is necessary to file and enter it in the County Clerk's Office. This process differs depending on the county in which papers are filed, Lastly, the Defendant must be served a copy of the signed and entered Judgment of Divorce with a completed Notice of Entry

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