The Uncontested Divorce
An uncontested divorce is one in which there is no disagreement on almost all issues such as custody, child support, division of property, debt allocation, and maintenance. Accordingly, in an uncontested divorce process, there is no litigation. Typically, the judge will simply sign off on the terms and issue a final decree of divorce. In an uncontested divorce process, there is rarely a hearing.
In New York, an uncontested divorce is where both spouses agree to end the marriage and have settled all of the major issues in the case, such as property division, child custody, and financial support.
An uncontested divorce is much faster and cheaper than a traditional divorce, especially because divorce domestic relations matter where an attorney cannot charge a contingency fee. Thus, most of the time, the fee of a contested (litigated) is by the hour (ranging from $150 to $250 per hour).
Grounds for the divorce
In New York, you and your spouse also have to agree on the “grounds” or reason for your divorce. New York allows “no-fault” divorce, so you don’t need to claim “fault-based” grounds for divorce, like adultery, abandonment, etc. Instead, you can use the “no-fault” grounds of irretrievable breakdown of the marriage for at least six months before filing for divorce, which 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. (New York Domestic Relations Law § 170 (7).)
Requirements for an Uncontested Divorce in New York
In New York, you can file for an uncontested divorce when you and your spouse agree about the following:
- – Desiring the divorce
- – The grounds for divorce
- – Property division (Usually the spouses agree there will be no distribution of marital property or debts)
- – Alimony
- – Child custody
- – Child support
- – Child visitation
An uncontested divorce is not possible when any of the key divorce issues just discussed are a topic of disagreement. If you also cannot reach an agreement with a collaborative divorce, a contested divorce is your final option.
To be able to file for divorce in New York, you also have to satisfy the “residency requirements” of the law, meaning either:
- – you or your spouse has been living in New York for at least two continuous years immediately before filing for divorce, or
- – you or your spouse has been living in New York for at least one continuous year immediately before filing for divorce and
- * you got married in New York, or
- * you 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
Even though an uncontested divorce in New York is quicker than a contested divorce, it is still a long and sometimes complicated process with a lot of paperwork. Luckily, all of the necessary forms with step-by-step instructions are available online from the New York State courts. However, if you want to have the support of a professional that cares care of everything, G.A.M. Law Office P.C. offers the service for a flat fee.
Prepare your paperwork. The first step in obtaining your uncontested divorce in New York is to prepare your forms, including the Summons, Verified Complaint, and Settlement Agreement. If you have minor children, you must complete additional paperwork concerning child support and custody. For more information and the full list of forms, see the New York Courts website.
Purchase an index number. Next, purchase an “index number” at County Clerk’s office in the county where you or your spouse lives. You must add the index number to your Summons and Verified Complaint.
Send the forms to your spouse. You must provide copies of the paperwork to your spouse, along with an Affidavit of the Defendant. If your spouse signs the Affidavit, the case can move forward. If your spouse doesn’t return the signed Affidavit of Defendant to you, you will have to serve your spouse, meaning someone other than you must hand your spouse the papers. Whoever serves your spouse has to fill out an Affidavit of Service.
File with the County Clerk. File the completed papers, including the Affidavit of Defendant or Affidavit of Service, at the County Clerk’s Office (in the same county where you purchased the index number). In some counties, you have the option to file online.
Finalize your divorce. The judge will review the documents and, if approved, will sign the Judgment of Divorce. After the judge signs the Judgment of Divorce, you have to file and enter it in the County Clerk’s Office. This process differs depending on the county in which you file, so ask the County Clerk in your county for specific instructions. Lastly, you must serve a copy of the signed and entered Judgment of Divorce on your now ex-spouse along with a completed Notice of Entry.
What Are the Advantages of an Uncontested Divorce?
There are a number of advantages to getting an uncontested divorce in New York.
– It’s faster, because there are fewer proceedings and negotiations. You can move on with your lives much sooner. You can avoid much of the stress of a contested divorce, which involves all the processes of any litigation like discovery, calling expert and character witnesses, making motions, introducing documents into evidence and testifying
– An uncontested divorce is much cheaper, even if both parties have attorneys, than a contested divorce, due to lower court costs but primarily due to lower attorney fees.
– It’s more harmonious and less likely to engender bad feelings than a contested divorce, which is important if you have children together.
– You and your spouse maintain control. You cannot know what a judge may order in a contested divorce.
– Your financial documents remain private rather than becoming part of public records as they would in a contested divorce.
Do You Need a Lawyer for Uncontested Divorce?
You don’t need to hire a lawyer to get an uncontested divorce in New York and you can represent yourself during the process. Spouses can try to handle everything themselves or use an online service that eases the process. Even though there’s no court battle in an uncontested divorce, one or both spouses can hire attorneys to help them through the uncontested divorce. You might want to talk to a lawyer, for instance, if your case feels complex or you have unanswered questions.
If you choose to work with us, at G.A.M. Law Office, we can give you advice on your proposed settlement, the uncontested divorce process, and make sure you complete the paperwork correctly and see that you file your paperwork on time.
Do you have an immigration petition?
What Happens if You Get Divorced After Getting a Green Card?
If you got a green card from marrying a U.S. citizen or permanent resident but you are interested in filing for a divorce, you may be wondering what will happen to your immigration status. Depending on certain circumstances, you may be able to remain in the United States For help with your after green card and divorce case, schedule your free consultation with us.
Divorce After Filing Your Visa Petition
If you only filed a visa petition with the U.S. Citizenship and Immigration Services (USCIS), a divorce means the end of your attempt to obtain a green card. Waiting for approval doesn’t come with rights or protections to be admitted or remain in the United States. If your I-130 Petition was already approved, then consult an attorney because you could be entitled to file a VAWA petition.
Divorce After Getting Approved for Conditional Residence
When an immigrant marries a U.S. citizen or a permanent resident, USCIS may grant a 10-year green card or a conditional residence status, which is a two-year green card given to a spouse of a short marriage (less than two years) once the petition has been approved. If an immigrant spouse divorces after obtaining conditional residence, it could be challenging to get approved for permanent residence.
After two years from the date of the approval of the conditional residence, the green card holder must file Form I-751 to remove the conditions on the green card and acquire a 10-years permanent resident status.
In the event of a divorce, you must submit the application on your own and ask USCIS to waive the joint filing requirement. For this to happen, it is necessary to provide convincing evidence that the marriage started off as authentic, despite ending in divorce.
Common examples of evidence include:
- – Copies of mortgage and rental agreements
- – Children’s birth certificates
- – Bank and credit card statements
- – Life insurance shared by both spouses
Remember, you cannot use the same type of evidence you previously submitted to USCIS. The more recent the documents, the better your chances.
Divorce After Getting Approved for Permanent Residence
If you have successfully applied for a green card (10-year resident status), you do not need to worry You may continue with your divorce process.
Applying for U.S. Citizenship After Divorce
If you want to become a U.S. citizen, after three years you will not be able to do it if you are not still married to the U.S. citizen the petitioned for you. Thus, you may apply for U.S. citizenship after 3 years. Additionally, when applying for your citizenship it is possible that USCIS will review again your immigration file and marriage information. If immigration officials determine that you obtained your green card through fraudulent means, not only will you lose the ability to become a U.S. citizen, but you could also get deported.
If you are interested in filing for divorce in New York, contact our divorce and green card professionals at G.A.M. Law Office