New York Uncontested Divorce

This information is an overview of the uncontested New York divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those "do it yourself divorce" filers, due to the fact that many cases are unique and the overview presented here is often not the only method of obtaining an uncontested divorce in New York.

In divorce actions, the person initiating the action is called the Plaintiff; the person responding is called the Defendant. Actions are filed in the Supreme Court, which is the county court.

New York grants divorces on six grounds. They are as follows:

> Cruel and inhuman treatment, Domestic Relations Law §170.1;
> Abandonment for a unbroken period of 1 year, DRL § 170.2;
> Imprisonment for more than 3 years after the marriage, DRL § 170.3;
> Adultery, DRL § 170.4;
> Conversion of a separation judgment, DRL § 170.5;
> Conversion of a separation agreement after living separate and apart for more than one year, DRL § 170.6.

In New York, a couple can separate in one of two ways. These are 1) by judgment of the court, or 2) by negotiating a separation agreement between themselves. Going the first route requires other grounds, such as cruel and inhuman treatment, so a negotiated agreement between the couples is easier if it can be arranged.

If a couple live apart for one year while legally separated, a Separation Judgement or Separation Agreement can be converted to a Judgment of Divorce with the separation used as the grounds for the dissolution. No other ground is necessary.

A Separation Agreement is most commonly used since it can be accomplished without involving the court.

While it is technically not a no-fault action, conversion of a separation agreement after living separate and apart for more than one year approximates the ease, if not the speed, of the no-fault method of divorce used in other jurisdictions. In this routine, the separation itself is the basis for the action.

The one-year period runs from the proper execution of the separation agreement before a notary. Filing of the separation agreement may be done simultaneously with the commencement of the divorce action. If filing is done prior to the commencement of the action, a 120-day period for effecting service on the Defendant does not begin until the Summons has been served. The Defendant may not waive Service of Summons.

When a couple sign a separation agreement, the Plaintiff normally files it or a Memorandum of Separation Agreement in the office of the clerk of the court where the divorce will happen. This agreement stipulates the terms and conditions of the separation, including the division and distribution of assets and liabilities, custody and visitation, child support and maintenance. At the same time, the Plaintiff can begin an uncontested divorce using one of the other grounds and seeking the agreed relief in the agreement. Filing the Memorandum of Separation Agreement instead of the Agreement itself shields the terms and conditions from public inspection, but care must be taken because without the original Separation Agreement, signed and properly dated, a divorce on grounds of separation will be difficult to obtain.

An uncontested divorce happens in one of two ways: 1.) as described above, happens when the couple come to agreement on every issue and negotiate the terms and conditions memorialized in an agreement; 2.) when the spouse does not or will not respond, which requires procedures described below.

When a couple cooperate in uncontested divorce, the following forms must be completed by the Plaintiff:

> Certification, which is a one-page form authenticating that the action is not frivolous. A copy of this form is attached to every other form used in the action.

> Request for an Index Number, which is completed when the action is filed. The Index number is called the docket number in many jurisdictions, and there is a $170 fee for filing this form.

> Summons, which informs the Defendant that the action has been filed. There are two versions of the Summons: 1.) is used when the Defendant is also served a Verified Complaint, and 2.) the Summons with Notice, when the Verified Complaint is not included. Both versions give the Defendant 21 days to respond (or 31 days if the Summons is delivered outside of New York). (The first version is more likely to be used when the spouses are in agreement.)

> The Affidavit of Service, which must be filed within 120 days of the delivery of the Summons. This Affidavit proves the Summons was served by either a process server or the sheriff.

> Verified Complaint, which details the reason why the divorce is being sought and the relief that is requested.

> Sworn Statement of Removal of Barriers to Remarriage, which is completed if the couple were married in a religious ceremony.

> The Affirmation (Affidavit) of Regularity, which verifies for the court that the Defendant was properly notified of the action and how he or she has responded, if at all.

> Statement of Net Worth, which is a very comprehensive declaration of the Plaintiff’s finances. This information is used to determine property division and maintenance.

> Affidavit of Plaintiff, which is used in lieu of oral testimony in all divorce actions except those where the ground for divorce is adultery. This affidavit profiles the circumstance leading to the divorce.

> Affidavit of the Defendant, which is used when the divorce is not contested. In this form, the Defendant agrees to the divorce, and he or she waives any rights under the Servicemembers Civil Relief Act.

> Child Support Forms, which must be used when child support is going to be paid to the Child Support Collection Unit, a third party who collects and distributes such payments.

> Note of Issue, which is a form recording the date and filing of the Summons.

> Request for Judicial Intervention, which is used when the court must issue orders ex parte. This form is not required in New York City.

> Affidavit Pursuant to Domestic Relations Law 75-J, which is used if there are children of the marriage and there has never been any court order directing custody.

> Notice of Settlement, which is used if the judge or the other party requests it when the Plaintiff is seeking a Judgment, Qualified Medical Order or any order signed by the court.

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

> Judgment of Divorce, which is the instrument ending the marriage.

> USC113, which is a form recording the facts of the marriage and the divorce for record keeping purposes.

> Certificate of Dissolution, which certifies that the judgment has been entered.

> Notice of Entry, which is a record of the entry of the judgment of divorce.

A contested divorce is a much more difficult climb. Even as a couple continue to negotiate -- and sometime battle -- about the terms and conditions of the divorce, they may be preparing for a divorce trial. When a divorce is contested, a judge is assigned to the case, and all forms and papers are filed in his or her office, not the clerk of the courts. At the least, the Plaintiff will need all of the forms used in an uncontested divorce plus these:

> Note of Issue and Certificate of Readiness, which recapitulates the history of the action and certifies that the case is ready for trial.

> Motions and Orders in Connection with Discovery, which is the process by which the Plaintiff discovers information from the Defendant. The process of Discovery may entail subpoenas of the Defendant’s financial information. Discovery is very time consuming and it is a big factor in the cost of a contested divorce.