Uncontested Divorce Procedures in New York
By Bernadette A. Safrath
In New York State, when you and your spouse agree to divorce, and there is no dispute over division of property, alimony, custody and support, you can file for an uncontested divorce, with or without an attorney. An uncontested divorce also can be granted if one spouse files a Summons and Complaint for divorce and the other spouse fails to respond. The NYS Unified Court System website provides the forms required to obtain a final divorce decree from a judge.
Unlike most states that require six months or one year of residence to file for divorce in the state, New York's residency requirements can be more complicated. To file for an uncontested divorce, the spouses must meet one of five requirements. First, the spouses must have been married in New York and at least one of those spouses must have been a state resident for one year prior to filing. The next possibility is that the spouses must have lived in New York as husband and wife for any period of time, with at least one spouse remaining a state resident for one year prior to filing. Another option is that the grounds for divorce, in this case the mutual separation, occurred in New York and a spouse must have been a state resident for one year prior to filing. Another alternative is that the grounds for divorce had to occur in New York and both spouses must be New York residents when the petition for divorce is filed. The final option is that one spouse maintains residency in New York for a continuous two years prior to filing.
Starting the Divorce Action
A divorce action begins with the filing of a Summons and Complaint or Summons with Notice in the New York Supreme Court located in one spouse's county of residence. The complaint must state the grounds for divorce. In an uncontested divorce, the no-fault grounds are usually "irretrievable breakdown" or a previous separation agreement that has been in affect for at least one year prior to filing. These documents must be filed with the court in one spouse's county of residence. The summons must then be served to the other spouse, though in an uncontested divorce where spouses are in agreement, the non-filing spouse is likely to file a waiver of service.
Sample documents and all necessary divorce forms are available on New York's Unified Court System website. Some of the more important documents that must be submitted to the court include affidavits from both spouses stating the reasons for divorce and confirmation that the spouses are in agreement on all issues, the child support worksheet if the spouses have minor children and an income deduction order. The income deduction order authorizes child support payments to be deducted directly from the owing spouse's wages. It is not required but frequently used because it allows for automatic child support payments, which eliminates the chance for missed payments in the future.
The most important documents are the Findings of Fact and Conclusions of the Law and the Judgment of Divorce. The Findings of Fact and Conclusions of Law restate the facts of the marriage and the circumstances of divorce and include the spouses' decisions as to division of property and spousal support. The marital settlement agreement setting out all the terms of the divorce are incorporated into the final divorce decree. As long as the court feels that the property and maintenance terms are not grossly unfair to either spouse, and that any custody arrangements are in the best interests of the children, it signs the judgement of divorce, formally ending the marriage.
While the time period for the finalization of a divorce is dependent on a court's caseload, typically an uncontested divorce in New York takes no longer than 60 days. It generally does not involve court hearings, but there is a waiting period for the court to review the divorce package and return the signed judgment. Spouses who have an amicable relationship may be able to settle the more contentious issues, especially those dividing property, and file the simple, uncontested process. Uncontested divorces are more common when spouses have no children, limited or no joint assets and no claims for spousal maintenance. Disagreement over those issues is what usually turns an uncontested divorce into a contested divorce.
Failure to Appear
The other way to obtain an uncontested divorce in New York occurs when you file and serve divorce papers and your spouse fails to respond. When your spouse is personally served with the Summons with Notice or Summons and Complaint, he has 20 days to respond. If he is served via mail or if anyone else accepted service on his behalf, he has 30 days to respond. After 40 days from the date of service, if your spouse does not submit an answer or sign the Affidavit of Consent to the divorce along with the divorce papers he was served, you can request that the court finalize the divorce. The court considers the absent spouse in default, assumes there is agreement on the terms of the divorce and signs the judgment of divorce just as in a mutual uncontested divorce.
Bernadette A. Safrath is an attorney who has been writing professionally since 2008. Safrath was published in Touro Law Center's law review and now writes legal articles for various websites. Safrath has a Bachelor of Arts in music from Long Island University at C.W. Post, as well as a Juris Doctor from Touro College.