An uncontested divorce means that every possible issue necessary to settle the divorce is agreed upon. There are different processes available to settle all the issues. Kitchen table discussions between couples is always available, divorce mediation, collaborative law, four way meetings with counsel and clients, and attorney negotiations are some of the more common. If there is any issue that is not resolved, such as what the child support payments are going to be, or how the equity in the marital residence is going to be divided, then the divorce cannot yet be called uncontested.
It does not mean that the case needs to become a contentious battle if it is not at uncontested status as of yet, rather it just means that there are things that still need to be resolved. Once the issues are resolved the case can become uncontested. I have been dealing with matrimonial and family law cases all over the New York City area, Nassau County, and Suffolk County for a number of years now. As a Long Island Divorce Lawyer, many of my cases start as contested only eventually to become uncontested. Some cases, however, are not settled and stay contested. That is how I gained my litigation experience. Most of my cases that I handle as a divorce mediator end up being uncontested after spending a little time working together.
The first topic that needs to be dealt with is grounds. One of the seven grounds must be selected as applicable and not disputed to meet this first hurdle. The most commonly selected grounds since the 2010 enactment of the no fault divorce in New York is in fact the no fault grounds, Domestic Relations Law Section 170(7), the irretrievable breakdown of the marriage. It must be agreed that one of the parties will be granted the divorce based on the selected grounds. Under the No-Fault law, it’s nobody’s fault, the marriage just did not work or was irretrievably broken for at least six months. One of the other grounds could be selected as well which are: Domestic Relations Law Section 170(1) cruel and inhuman treatment; Domestic Relations Law Section 170(2) abandonment; Domestic Relations Law Section 170(3) imprisonment; Domestic Relations Law Section 170(4) adultery; Domestic Relations Law Section 170(5) living separate and apart pursuant to a separation judgment or decree; or Domestic Relations Law Section 170(6) living apart pursuant to a separation agreement. Even if one of these other grounds is selected, the party who is not being granted the divorce does not have to admit the grounds, they can simply neither admit nor deny the grounds. That’s enough for the grounds issue to be resolved.
If there are children of the marriage under 18 (eighteen) years of age then custody and parenting time is usually the next issue that needs to be resolved in order for the matter to be an uncontested divorce. There are different types of custody such as sole custody, joint custody, residential custody, shared custody, joint legal custody, and joint legal custody with spheres of influence to name some of the most common. Other blog entries and pages on my website go into more details about custody and parenting time. Please click around or call for more information on the topic.
Alimony, which is now known as maintenance in New York must be agreed upon for the divorce to be uncontested. There needs to be a consensus on whether there is any maintenance, and if so, how much and for how long. If there is any maintenance, it is usually for some durational period anywhere from a matter of months to years. Again, if there is a disagreement about any facet of maintenance then the case is still not uncontested. The same goes for child support which needs to be addressed if there are minor children since in New York the law is that child support goes to age 21 unless the children are sooner emancipated. Different blog entries and pages on my website also have more details regarding maintenance and child support. Call or click around for more information about child support and maintenance.
Equitable distribution is another big area that needs to be settled if the divorce is going to proceed as uncontested. There needs to be consensus on what are marital assets or marital property and separate property or separate assets. An agreement needs to be made about how the marital assets should be distributed between the parties. Marital debt needs to be allocated as part of equitable distribution. What is happening with the personal items needs to agreed upon. Pensions, retirement accounts, business interests, enhanced earning capacities, and values in degrees and licenses that were earned during the marriage all should be accounted for as part of the settlement to be an uncontested divorce. Sometimes the solution can be as simple as waiving interests in the assets that are in the other spouse’s name. Of course, sometimes, it is not so easy. If there is not an agreement on these issues, then the divorce cannot be called uncontested yet.
Feel free to call or schedule an appointment for a free initial consultation if you are looking for the representation of an attorney. Mediating couples are encouraged to take advantage of a half hour free consultation together. Please let us know if we can help. It would be our pleasure to speak with you about it.
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