In New York, the contested and uncontested divorce processes are similar. You must meet residency requirements, complete paperwork, serve your spouse with divorce papers, and have your case put on the court calendar. However, that is not to say that contested and uncontested divorces are the same. Marked differences exist between the two, and some of the things required in one may not be necessary for the other.
Before delving into the processes involved in seeking a contested or uncontested divorce in New York, let us first discuss what these two types are.
What Is a Contested Divorce?
A contested divorce is one in which you and your spouse do not agree on critical issues, such as asset division. Your case will be scheduled for a hearing where a judge will decide how to settle matters.
A contested divorce can take a significant amount of time, as there may be quite a bit of back and forth when deciding how to settle your case.
What Is an Uncontested Divorce?
Your divorce may also be considered uncontested if your spouse does not file an answer after being served with papers or fails to appear at scheduled hearings.
Because you and your spouse have decided on divorce-related issues (or your spouse did not submit a response, disagreeing with your divorce terms), your case will likely not be scheduled for a trial. Instead, a judge will review your arrangements, and provided that everything seems fair and legal, they will approve your divorce.
Typically, an uncontested divorce is less time-consuming and less expensive than a contested divorce.
How Do I File for a Contested or Uncontested Divorce in New York?
As mentioned at the beginning of this blog, the filing process is similar.
The steps may include the following:
- Meet residency requirements: For both a contested and uncontested divorce, you or your spouse must meet residency requirements. These include:
- Living in the state for at least two years before filing;
- Living in the state for at least one year before filing and you were married in New York, you lived here as a married couple, or you are seeking a divorce based on grounds that happened in the state
- Living in the state when you filed for a divorce and the grounds for your divorce occurred in New York
- Have a reason for your divorce: When petitioning for a divorce, you must state the legal basis (grounds) for it. New York law enumerates seven grounds for divorce:
- Irretrievable breakdown of the marriage
- Cruel and inhuman treatment
- Divorce after a legal separation
- Divorce after a judgment of separation
Generally, the basis for an uncontested divorce is an irretrievable breakdown of marriage, also referred to as a "no-fault" divorce. Still, any ground can apply as long as your spouse agrees.
- Complete necessary paperwork: For both a contested and uncontested divorce, you must complete paperwork that you eventually submit to the court. The documents you are required to fill out depend on the type of divorce you are seeking.
- Serve your spouse with divorce papers: Whether you are filing for a contested or uncontested divorce, you must officially notify your spouse that you have submitted the petition. This involves getting a copy of the papers to your spouse.
- Have the Affidavit of Defendant completed: This requirement applies only to uncontested divorces. If your spouse agrees with the divorce, they sign the Affidavit of Defendant and have it notarized, then return it to you.
- Have your case put on the court calendar: For either a contested or uncontested divorce, your case must be put on the court's calendar. With a contested divorce, you may have to attend several hearings to settle matters. With an uncontested divorce, you may not be required to make any court appearances. The judge may review your documents and sign the judgment of divorce.