Frequently Asked Questions Divorce and Separation

What is the difference between an uncontested divorce and a contested one?

An uncontested divorce is one in which the husband and wife have both agreed that they wish to be divorced and also have come to an agreement with respect to the terms of their divorce, i.e. property division, maintenance (formerly called alimony), child support, child custody, visitation, etc.

In such a case, one of the spouses, known as the plaintiff, will typically retain an attorney to represent him or her and to start, or commence, the Divorce Action against the other spouse. The attorney will then prepare all of the necessary documents, which often include a Settlement Agreement, that the Court will require to grant a divorce. Once all of the required documents have been signed by the parties, the attorney will submit them to the Court for processing. In Nassau and Suffolk Counties, the parties will then normally be granted a Judgment of Divorce by a Justice of the Supreme Court within four to five months, without attending Court.

A contested divorce, by definition, is one in which both spouses retain an attorney to represent their interests and to attempt to reach an out-of-Court settlement, if possible. Technically, even if both spouses agree on all of the terms of their divorce, the fact that each of them is represented by an attorney makes the case a contested one. If an out-of-Court settlement cannot be reached, the attorneys will submit the matter to the Supreme Court, so that the Court may participate in the resolution of all issues that cannot be agreed upon by the parties.

What fees will I be charged by the Court to process my uncontested divorce?

In addition to your legal fees, you will need to pay the typical Court fees in a divorce case, which include:

  1. Index Number Fee: $210.00;
  2. Note Of Issue Fee: $30.00;
  3. Request For Judicial Intervention: $95.00;
  4. Certified Copy of the Judgment of Divorce: Usually $5.00 to $10.00 per copy, depending upon its length;
  5. Filing Fee For Settlement Agreement (if necessary): $35.00.

Do I need to show the Court that my spouse is at fault before the Court will approve my divorce?

Not necessarily. As of October 13, 2010, New York State's "No Fault" Divorce Statute (Section 170(7) of the New York State Domestic Relations Law) took effect. Subject to New York State's Residency Requirements (which are stated in this FAQ Section), this law created a new ground for divorce which allows one spouse to commence a Divorce Action against the other by simply alleging that the marriage has broken down irretrievably for a period of at least six (6) months.

Assuming that New York State's Residency Requirements have been met, the Court will grant a Judgment of Divorce under this ground as long as one of the parties has sworn under oath that the relationship has broken down irretrievably for at least six (6) months AND as long as all of the economic issues of the distribution of property, spousal support, child support and counsel fees and/or expert fees, as well as the issues of the custody and visitation of minor children, have been resolved by the parties or these issues have been decided by the Court and the resolutions of these issues have been incorporated into a final Judgment of Divorce.

However, in addition to the "No Fault" Divorce Statute, parties in New York may still commence a Divorce Action under the grounds which existed prior to the passage of the "No Fault" Law if they so choose, again subject to New York State's Residency Requirements. All of the grounds for divorce are stated in the New York State Domestic Relations Law.

More specifically, in addition to the "No Fault" Divorce Statute under Section 170(7) dealt with above, Section 170 of the New York State Domestic Relations Law also provides that an action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on any of the following grounds:

  1. The cruel and inhuman treatment of the plaintiff by the defendant;
  2. The abandonment of the plaintiff by the defendant for a period of one or more years;
  3. The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of the parties;
  4. The commission of an act of adultery by the defendant;
  5. The husband and wife have lived separate and apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment, and that satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment;
  6. The husband and wife have lived separate and apart pursuant to a written agreement of separation for a period of one or more years after the execution of such agreement, and that satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement.

Can I file a divorce action against my spouse in New York State if he or she does not live here or if we were married in another state?

Yes, as long as New York State's residency requirements are satisfied and there are proper grounds. Section 230 of the New York State Domestic Relations Law provides that an action to annul a marriage, or to declare the nullity of a void marriage, or for divorce or separation may be maintained only when:

  1. The parties were married in the State and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding;
  2. The parties have resided in the State as husband and wife and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding;
  3. The cause occurred in the State and either party has been a resident for a continuous period of one year immediately preceding;
  4. The cause occurred in the State and both parties are residents thereof at the time of the commencement of the action;
  5. Either party has been a resident of the State for a continuous period of at least two years immediately preceding the commencement of the action.

Can I obtain a divorce in New York State if I cannot locate my spouse?

Very often the answer is "yes". However, before proceeding with the case, the Court will normally require you to attempt to locate your spouse through what is called a due diligence search because it prefers that your spouse have actual notice that you have commenced a divorce action against him or her, if possible.

In New York, a divorce action is started by having a Summons (a document that is filed with the Court and tells your spouse that you have commenced a divorce action and spells out what relief you are seeking) personally handed to your spouse, usually by a process server. This process is called service of the Summons.

If you cannot locate your spouse after the due diligence search, the Court will normally allow you to serve the Summons on your spouse through its publication in a newspaper located as close as possible to your spouse's last known address instead of requiring that it be personally served on him or her.

Once this has been accomplished, you will then be able to proceed with your case. However, if there are minor children of the marriage and/or marital assets to be distributed, and your spouse does not appear in the action by answering the published Summons, the Court may require you to appear without your spouse before a Justice of the Supreme Court to participate in an Inquest, where the Court will take testimony from you and will formally rule on the divorce and its unresolved issues.

What is the Child Support Standards Act (CSSA)?

The Child Support Standards Act (CSSA) is a law contained in Section 240 of the New York State Domestic Relations Law and establishes a formula by which the non-custodial parent's (the parent which the child/children is not living with) child support obligation to the custodial parent (the parent with whom the child/children live with) may be calculated by the Court.

However, in the event that the parties are able to agree upon what amount of child support is acceptable to them under their specific circumstances, the parties may choose not to have the Child Support Standards Act applied to their case and ask the Court to allow them to "opt out" of the Act.

Will our assets be divided equally between us by the Court hearing my divorce case?

Possibly. In New York State property division is governed by a principle known as Equitable Distribution.

First, the Court will ascertain which of your assets are separate assets which, in most cases, are not subject to distribution. These types of assets may include, but not be limited to, those which are inherited by one of the spouses during the marriage, assets which are obtained by a spouse through a personal injury lawsuit during the marriage and gifts obtained by one of the parties during the marriage.

All other assets obtained by the parties during the marriage, such as houses, cars, bank accounts, pension plans and professional degrees and licenses, regardless of which spouse's name is listed on the deed or title, are classified as marital property and are subject to Equitable Distribution.

Equitable Distribution is not necessarily equal distribution, however. Essentially, a Judge will treat the marriage as an "economic partnership" and attempt to ascertain each spouse's contribution during the marriage to that partnership, treating each matter on a case-by-case basis. Based upon this these contributions, as well as other factors including the duration of the marriage, the Judge will arrive at what he or she believes to be a fair, or equitable, distribution of the parties' marital property.

Do I need to go to Court to obtain a Legal Separation?

Not necessarily. A Legal Separation may be obtained in New York State in two ways:

  1. A spouse may commence an Action For Separation against the other spouse in the Supreme Court of the county in which either of the parties reside. This method of obtaining a Legal Separation is much like a Divorce Action in that the party starting the action (known as the plaintiff) must allege and prove certain grounds to show the Court that he or she deserves to be awarded a Judgment of Separation and there are Court fees which must be paid in connection with the Action. The Action can be either a Contested or Uncontested one depending upon the issues to be resolved and the parties' respective positions on those issues.
  2. The spouses may also obtain a Legal Separation by entering into a written Agreement known as a Separation Agreement. In a Separation Agreement, the parties would agree to the resolution of all of the issues in their particular case including, but not limited to, the distribution of their assets, spousal support (also known as maintenance), child support, child custody and visitation, and attorney's fees. Once the Separation Agreement has been properly signed, the parties are legally separated without the need to go to Court and without the need to pay Court fees.

Again, the preparation of a Separation Agreement can be either a Contested or Uncontested matter depending upon the issues to be resolved and the parties' respective positions on those issues.

It is also important to bear in mind that, whether the parties obtain a Legal Separation through a Judgment of the Court or via a written Separation Agreement, as long as the parties have lived separate and apart for at least one year thereafter, either of the parties may then bring an Action For A Divorce against the other spouse using the "No Fault" Conversion Ground found in Sections 170(5) and 170(6) of the New York State Domestic Relations Law. However, in order for the Court to grant the divorce under these grounds, the spouse starting, or commencing, the action must satisfy New York State's Residency Requirements (listed above in this FAQ Section) and allege, and satisfactorily prove, that he or she has substantially performed all the terms and conditions of such Decree, Judgment or Separation Agreement.

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

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