Common Questions about Uncontested Divorce

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If you have made the decision to file an uncontested divorce, you probably have questions. Fortunately, you have come to the right place. Eiges & Orgel, PLLC has been representing clients in a wide range of family law matters for more than three and a half decades. Take advantage of a no-cost, comprehensive case evaluation with our firm today.

What is the difference between contested and uncontested divorce?

Most people want to avoid contested divorce because this type of divorce proceedings happens in court. Court battles are often long, cost more money and cause an excess of unnecessary hostility between both parties. If you want to pursue uncontested divorce on the other hand, the agreements surrounding your divorce will be decided outside of court. Since uncontested divorce sounds so much more favorable, you may be wondering how you can qualify. In order for your divorce to be considered uncontested, you and your spouse must agree on some main issues:

  • Grounds for divorce
  • Child custody (if applicable)
  • Child support (if applicable)
  • Property division

The grounds for divorce in uncontested divorce are typically deemed "irreconcilable differences." This simply means that neither spouse is blaming the other of anything, but rather they are stating that they have grown apart and mutual interests have changes. In the event that a spouse is blaming the other and they do not see eye-to-eye when it comes to these issues, the divorce proceedings will likely need to continue in court as a contested divorce. In this case, the court determines the outcome for both parties. One thing both types of divorce have in common is that in order to file in the state of New York, you must have been a resident for at least one year.

What is uncontested divorce like with children?

Divorce is complicated enough on its own, let alone when children are involved. Chances are, since you are seeking uncontested divorce with your spouse, you both care immensely for your children. However, there are still issues that need to be addressed and worked through when it comes to your children. Uncontested divorce means that you are trying to settle your divorce outside of court. This can only be done if you and your spouse come to an agreement on key issues. If you have children, some of those key issues directly involve them.

One of such key issues is child custody. You and your spouse will have to determine with the help of an attorney what kind of parenting arrangement is best for your children. Remember, their interests come even before your own in the case of uncontested divorce. Once child custody is determined then you can discuss child support. Most often, the spouse that is responsible for the children the least amount of time will be legally responsible for paying child support payments. The amount of these payments will, of course, differ from case to case. Other issues that may arise in uncontested divorce involving children are visitation rights and parent relocation.

What is contested divorce like without children?

You are likely seeking uncontested divorce because you want your proceedings to move by quickly without a lot of glitches along the way. Uncontested divorce gives you and your spouse the opportunity to hammer out the details of your divorce outside of court. This can be an especially viable option for those who do not have children. Children are a big part of the decision making process when it comes to a divorce, which is why spouses with no children don't have as many hurdles to jump through, although there are still issues that need to be worked out.

Without children, the biggest issues you and your spouse are having to face is how to divide your assets. A New York divorce attorney from our firm can help you with asset division in order to ensure that you aren't getting cheated out of anything that is rightfully yours. Assets can also be called "property" which can cause confusion about what that actually entails. Asset division can even include immaterial things such as debts and retirement savings. You may also be looking at the possibility of spousal support payments, also known as alimony. Whether or not you have children, seeking legal help for your uncontested divorce is a must.

How long does an uncontested divorce take?
Every divorce is different, which means that the length of the divorce process will vary from case to case. Generally, uncontested divorces take far less time than traditional divorce proceedings—which require numerous visits to the courthouse. In most cases, an uncontested divorce will take at least six to eight weeks, but could extend up to three months or longer. This will depend on how quickly the paperwork can be filed and how busy the court is.

Will I be required to appear in court at any point?
One benefit of filing for an uncontested divorce is that you will typically be able to avoid going to court. Unless the judge has a question about something listed in the divorce proposal, it is rare that either party would be required to appear in court. However, if you or your spouse disagrees with any of the terms laid out in the agreement, the divorce would no longer be uncontested. Both sides must agree on all issues. If this is not possible, the case will go to court.

What if my spouse fails to sign the divorce papers?
In some cases, an uncontested divorce may be finalized by way of default. If divorce papers are filed and your spouse fails to respond accordingly after they have been served, they would be “in default.” What this means is that, after the 40-day waiting period has expired, the spouse who has been served would forfeit the right to participate in the divorce. As a result, the petitioning spouse could move to have the uncontested divorce finalized by reason of default.

We don't agree on everything – can we still pursue an uncontested divorce?

A majority of Americans want to pursue uncontested divorce because they don't want their divorce proceedings to be drawn out or end up in court. However, no two people going through a divorce are going to see eye to eye on everything. The point of uncontested divorce proceedings is to work these issues out so that the two can come to an agreement. If you and your spouse cannot come to an agreement about the terms of your divorce and one or both parties still wish to contest the terms, then the divorce is considered contested and will then have to be resolved in court.

Should I hire a lawyer for an uncontested divorce?
Even if you and your spouse have agreed on all aspects of your separation, it is still recommended that both parties seek counsel from an uncontested divorce attorney in New York. Although the uncontested divorce process is generally not as complicated as that of a contested divorce, you must still ensure that all necessary paperwork is properly completed and filed. A single mistake could result in the outright dismissal of your case and the loss of your filing fee.

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