Constested vs. Uncontested divorce in New York

Generally, when potential divorce clients come to my office for a free consultation regarding obtaining a divorce – the first thing they want to know is whether it is going to be a contested divorce or an uncontested divorce. The truth is that the only people who will know the answer to the question – is the husband and wife themselves. An uncontested divorce is one in which the parties have agreed to the terms of the divorce and there are no outstanding issues. It is not enough that the parties kind of agree, or theoretically agree – the parties have to agree in writing in a signed and notarized document. An uncontested divorce is one in which the husband and wife have discussed the issues, understand the issues, and have settled the terms. Generally, the husband and wife have limited ties to each other and the relationship it easy to untangle.
The majority of uncontested divorces have the following characteristics:

• No children
• No real estate
• No joint bank accounts
• No assets
• No claim for alimony/spousal support/maintenance
• No claim for attorneys fees
• No claim against any advanced or professional degrees
• No claim for health insurance or life insurance

Of if one or a few of the above referenced items are at issue, the parties have discussed them and come up with a solution them selves. In an uncontested divorce, it is very easy for the parties to untangle themselves from the relationship. These are often cases in which the parties are no longer together but have remained on good terms. Keep in mind that a NY divorce lawyer can only represent one party to the divorce whether it is the husband or wife. The other party can represent themselves (often referred to as Pro-Se) or they can hire a lawyer of their choosing.
Another common question, I get is whether we can start out the divorce uncontested and convert it to a contested divorce if things don’t work out. The quick answer is yes, but the more efficient way to handle a situation like this is to start out a contested divorce and attempt to resolve is without a courts intervention and without lengthy discovery, depositions and ultimately a trial. We can do this with a detailed Stipulation of Settlement.

STEP BY STEP GUIDE FOR AN NY UNCONTESTED DIVORCE

The first step in obtaining an uncontested divorce is the actual decision to file a divorce. This is often the hardest part; I often meet clients who come to me initially for a free consultation, and agree that they are going to get a divorce. Then I don’t hear from them again for a couple of months and it is usually when one of two things have occurred; their significant other called the police and they are being charged with the domestic violence trifecta – harassment, assault, and menacing or they are in the receiving end of a summons and complaint for divorce.

NY UNCONTESTED DIVORCE INTAKE

Once you retain the a lawyer to represent you in your uncontested divorce the first thing that we are going to do is have you fill out a comprehensive intake form which details certain required pedigree information and the terms of the divorce that you and your husband and wife agreed upon. If there are terms are still being negotiated then we can assist you in wrapping that part of the divorce up.

SUMMONS AND NOTICE

Once we have the intake, we will draft the Summons and Complaint. An uncontested divorce can be filed with a Summons with Notice but often times that is an extra step that has no real benefit but extending the process. This would be used if for some reason you needed to start the divorce immediately and you didn’t have time to draft the full complaint or if this was a divorce in which you were negotiating with the opposing spouse and/or counsel and you wanted to work up the Complaint together. The Summons part is the document that gives your husband or wife notice that they are being sued for a divorce. Also, if you serve just a Summons with Notice and for some reason your “uncontested divorce” turns into a “contested divorce” you will likely get served with a demand for a Complaint” which will just prolong the divorce proceedings.

The Summons with Notice will require certain key information:

• The County in which the divorce is being filed in
• The index number
• The date the summons was filed with the clerk
• The County in which the venue the plaintiff designates as the basis of the trial.
• The Plaintiff must state the reason for choosing a specific venue, that is, why this case may be heard in the county. There are a few options for venue:
  • Plaintiffs residence (Plaintiff lives in the county)
  • Defendants residence (Defendant lives in the county)
  • CPLR 509 – Any other county, as long as the Defendant does not object and the court accepts the case. If you choose a county in which neither party resides in you would write in CPLR 509.
• The address where the Plaintiff resides unless it is confidential
• The date in which it was signed
• The grounds for the divorce
• Any ancillary or additional relief the Plaintiff is requesting from the court
• Whether marital property is to be distributed pursuant to a separation agreement or stipulation
• Whether any claim for marital distribution is waived

The truth is most parties to a divorce do not know whether an uncontested divorce would be the right vehicle to obtain the divorce. What happens if their spouse was not fully transparent with their finances when they first met? Or promises to deliver something once the divorce is finalized and doesn’t follow through? Or states that he has no income now, but works off the book? Or has been secreting funds throughout the marriage? The possible scenarios are limitless and this is why a proper consult with a NY Divorce attorney is essential to understand your rights.

SUMMONS WITH VERIFIED COMPLAINT

The Complaint part gives the Defendant the underlying details as to the basic facts of the divorce and what you specifically want from them. Once these documents are drafted we physically take them down to the County Clerk’s office in the County in which you are filing the divorce in. The filing fee for the Summons and Complaint is $210.00. This fee can only be paid in certain formats so you will want to make sure that you have the appropriate form of payment. The $210.00 filing fee is the cost to commence the lawsuit, and you will receive an index number. The index number and the date the Summons and Notice or Summons and Complaint is filed will also be put on the Summons. Now, if you have an uncontested divorce you don’t need to work about hiring a process server or having a friend “serve” your spouse. Since they are contesting to the terms of the divorce, it is safe to assume that they are consenting to service of the initiating documents in the divorce. However, this is not always the case.

AFFIDAVIT OF SERVICE

The affidavit of service is an important document because this provides the court with proof that the defendant (your husband or wife) was actually served with the divorce documents. In a true uncontested divorce, where the defendant is accepting service this document is unnecessary since he or she will be filling out an affidavit of defendant which will consent to service.
The affidavit of service must be filled out by the person that serves the summons with notice or the summons and verified complaint on your spouse (the Defendant).
Here are the step by step directions to properly filling out an Affidavit of Service:

• Insert the county in which the divorce is brought as on prior forms
• Print the Plaintiff’s name.
• Insert the index number.
• Print the Defendant’s name.
• Insert the state and county where the process server signed this document before a notary public.
• The process server must fill in his or her name and address.
• The process server must fill in the details of when and where the Defendant was served, and must check the appropriate boxes as to the documents that were served.
• If there are children of the marriage under the age of 21 the Child Support Standards Chart must also be served on the Defendant.
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• The process server must detail how he or she identified the defendant. What specific characteristics did the defendant have? Was it based on a picture? A copy of the picture should be attached then.
•  The process server must ask the Defendant whether he or she is a member of the military of this state or any other state or this nation.
• The process server must sign the document when completed before a notary public.

NOTICE OF AUTOMATIC ORDERS

The automatic orders, which became part of New York State divorce procedure in 2009 with the enactment of Domestic Relations Law (DRL) section 236(B)(2)(b) and the promulgation of 22 New York Codes, Rules and Regulations (NYCRR) 202.16-a, prohibit the unauthorized transfer of marital assets during the pend ency of the case.

Once a divorce is filed in NY, there is a “Notice of Automatic Orders”, which accompanies the Summons and Complaint. The Notice of Automatic Orders is copy of a court order and is meant to prohibit certain actions of both Plaintiff and Defendant during the pendency of the case. This could emptying bank accounts, safe deposit boxes, running up joint credit, taking out new lines of credit, etc.

NOTICE CONCERNING CONTINUATION OF HEALTH CARE COVERAGE


Regardless of what you think, the divorce proceedings must come second to your health. If you are covered under your spouse’s employer then your spouse is prohibited by law from removing you from the existing medical, hospital and/or dental insurance coverage and must maintain the existing coverage in full force and effect during the divorce. However, once the divorce is over and you obtain the divorce decree you will not be covered anymore. Early on in the divorce negotiations you will want to have conversations with your spouse about your options. You do not want any gaps in coverage.
It is important for anyone going through a divorce to fully understand “COBRA” (Consolidated Omnibus Budget Reconciliation Act) insurance. The Judge in the divorce may require your spouse to obtain coverage for your children, it is likely hat you will not be covered. If your spouse’s company has less then 20 people you will be eligible for continued health insurance coverage under their employers plan.
It is imperative that you understand the that your spouses employer is only required to provide COBRA coverage for you if you notify the health plan administrator with 60 days of becoming divorced. If you don’t give proper notice you can be denied coverage.
When you were covered under your spouses insurance plan, it is likely that the employer covered all of part of the expense. Under COBRA, you will be responsible for the full cost of the premium. If your employer provides health insurance at little or no cost to you, then you are better off obtaining health insurance through your employer. Before you choose the COBRA option, look into other private plans to see what other options are available. Keep in mind that COBRA is only for 36 month’s so you will want to plan ahead.

SWORN STATEMENT OF REMOVAL TO BARRIERS OF MARRIAGE

In New York, there are extra steps required in a divorce if you were married in a religious ceremony instead of a civil one (think city hall.) If you were married in a church, synagogue, mosque or by any member of the clergy or other religious figure, before you can get divorced you have to swear in writing that you have taken or will take all necessary steps to remove any barriers to your spouse’s remarriage following the divorce. This is important because what happens if there are non-legal steps to dissolve the marriage in the eyes of the religion. Catholics require a special blessing from a priest and Orthodox Jews required a “get” from a Rabbi.

AFFIRMATION OF REGULARITY

The Affirmation Regularity (if you are represented by an attorney) or Affidavit of Regularity (if you are filing pro se) verifies for the court that the Defendant was properly notified of the divorce and how he or she has responded, if at all. If the Defendant has not responded, this affidavit moves the divorce along an uncontested track. The affidavit of regularity requires information such as the date the Defendant was served and whether the Defendant has appeared in the divorce action. As a result, it can only be signed after the summons and been served and when your certain the Defendant has appeared in the divorce. The Affirmation/Affidavit of Regularity should only be signed after Defendant has either executed the Affidavit of Defendant or has defaulted after being personally served with the Divorce Complaint. The Affirmation/Affidavit of Regularity is submitted with the final set of divorce papers (which include, among other documents, the Affidavit of Plaintiff, proposed Judgment of Divorce, and proposed Findings of Facts and Conclusions of Law). Although NY courts grant uncontested divorces “on the papers” (i.e., without requiring testimony in front of a judge), the courts require that each document be executed and acknowledged in a precise manner. If you are not represented by an attorney, your Affirmation of Regularity must be notarized.

AFFIDAVIT OF PLAINTIFF

The Affidavit of Plaintiff, which must be notarized, is used in all divorce actions except those where the ground for divorce is adultery. This affidavit identifies the circumstances leading to the divorce.

AFFIDAVIT OF DEFENDANT

Affidavit of the Defendant, which must be notarized, is used when the divorce is not contested, and the Defendant consents or waives service of the Summons and Notice or Verified Complaint. In this form, the Defendant agrees to the divorce, and he or she waives any rights under the Service Members’ Civil Relief Act.

CHILD SUPPORT WORKSHEET

Child Support Worksheet, (UD-8), is a form which must be submitted by the Plaintiff if there are minor children of the marriage (under 21). This form shows the amount of child support to be paid by the noncustodial parent to the custodial parent.

SUPPORT COLLECTION UNIT INFORMATION SHEET

Support Collection Unit information Sheet (UD-8a), must be submitted by the Plaintiff when he or she requests the services of the Support Collection Unit.

QUALIFIED MEDICAL CHILD SUPPORT ORDER

Qualified Medical Child Support Order (UD-8b), must be served on the employer of the spouse legally responsible to provide medical insurance for the child(ren), usually the noncustodial parent.

NY NOTE OF ISSUE

In contested divorces, a Note of Issue is used to record the date and filing of the Summons. In contested actions, the Note of Issue must be filed with a Certificate of Readiness, which recapitulates the history of the divorce and certifies that the case is ready for trial. After financial disclosure is over and all the necessary appraisals, settlement conferences, and court conferences have been completed, the Plaintiff must usually file a note of issue and a certificate of readiness with the court. These documents notify the judge that the parties are ready for trial.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Findings of Fact and Conclusions of Law (Referee’s Report) reiterates the facts of the marriage and the conclusions of the court regarding support and maintenance.

JUDGEMENT OF DIVORCE

Judgment of Divorce (UD-11) or (A-13), is the court order ending the marriage.

PART 130 CERTIFICATION

Part 130 Certification (UD-12) or (A-14), certifies that “every document relating to the divorce divorce which is served, filed or submitted to the court, is not frivolous…” This certification must be attached to other court filings. This is called Certification.

REQUEST FOR JUDICIAL INTERVENTION (RJI)

A Request for Judicial Intervention (UD-13) or (A-11), is a request for a judge to be assigned to a case. Under the New York Court System, a judge is not assigned to the case automatically. A judge is only assigned to a case after a Request for Judicial Intervention Form has been filed with the Clerk of the Court. A Request for Judicial Intervention filed in uncontested divorces, is used when the court must issue orders ex parte, which means without the other party being notified.

NOTICE OF ENTRY

The Notice of Entry (UD-14) or (A-15), is a record of the entry of the judgment of divorce. A copy of the Judgment of Divorce and the Notice of Entry must be serve of your ex-spouse, otherwise your divorce might not be considered final.

CERTIFICATE OF DISSOLUTION OF MARRIAGE FORM

The USC 113 is a state form recording the facts of the marriage and the divorce for record keeping purposes. This form must be completed by the Plaintiff and submitted to the Supreme Court Clerk’s Office upon submission of the filed papers. The information reported on the form is confidential and will be used for statistical purposes only.

NOTICE OF SETTLEMENT

This form is filed with the court clerk’s office along with the Proposed Judgment for Divorce and the Qualified Medical Child Support Order Form, if applicable, at the completion of a settlement in a contested divorce.

POSTCARD

You will have to provide the clerks office with a self addressed postcard so that once the divorce makes it way through the process you can be notified of the results. This will allow you to understand any of the defects in the divorce.