When a couple in New York decides they want to divorce, they have two options. They can have a contested or uncontested divorce. When a couple does not agree on issues involving their separation; and require a judge or jury to decide on these issues at a trial, this is a contested divorce. Should the couple agree on all issues involving the dissolution of their marriage, there will be no need for a judge or jury trial to decide them. This is called an uncontested divorce.
No-Fault
New York divorce laws were changed in 2010 to permit a no-fault option for divorce. This requires there be an irretrievable breakdown of a marriage for at least half a year before a couple can file for an uncontested divorce. It is a legal statement by the couple that they do not want to be married anymore, and both believe they won’t ever become a married couple again.
Failure to Appear
One way for a couple in New York to be awarded an uncontested divorce is if one spouse properly files and serves the divorce paperwork to the other spouse. The other spouse receives the paperwork and fails to properly respond. The other spouse will have 40 days from the day they received the paperwork to submit a response. When this doesn’t happen, the spouse filing the paperwork can ask a court to affirm their divorce request. This is done often as a judge will assume the absent spouse agrees with the terms set forth in the paperwork received by the court.
Issues
A couple in New York will be able to file for an uncontested divorce if they can come to an agreement on certain issues. They must agree to the divorce, the payment of spousal support as well as amounts and who will be responsible. The grounds for divorce as well as the amount of child support if children are involved. A couple needs to decide parenting time for each parent as well as the custody arraignment for each spouse. They also need to determine how marital assets, as well as debts, will be divided.
Residency Requirements
When a couple living in New York wants to file for any type of divorce, they will need to meet certain legal residency requirements. One of the spouses must have been residing in New York for a minimum of two continuous years. This requirement must be met before filing for the divorce. Both spouses must have resided in New York for a minimum of twelve continuous months prior to filing for a divorce. The couple must have gotten married in New York, or the grounds for divorce occurred while they were residing in New York, and they lived in New York as a married couple.
Process
When couples want an uncontested divorce in New York, the first step is to prepare a Verified Complaint or Summons with Notice. Two copies of this must be taken to the County Clerk’s office, and the couple will purchase an index number. Then a spouse will have to sign the Affidavit of Defendant. This must be completed and given back to the spouse who filed the paperwork. When this completed form is submitted, the couple’s divorce case will be placed on a court’s calendar. This will require completing additional forms. If children are involved, an addendum form will need to be completed. A Certificate of Dissolution of Marriage must be completed as well as a Child Support Summary Form; if necessary. Once all of these documents are completed, they can then be taken to the County Clerk’s Office where a filing fee must be paid. When there are no disputes over issues, it’s possible for a couple to file for an uncontested divorce without lawyers. Once the divorce is granted, there are forms that must be completed to obtain a final divorce decree from a New York court judge.
Benefits
There are many benefits couples experience when getting an uncontested divorce. Because the couple has agreed on all the major issues, there will be no need to let a judge or jury determine what will happen. With not going to court, a couple can maintain their privacy and not have things they want to keep private on record. The process is much quicker and easier than a contested divorce.
When a couple wants to get an uncontested divorce, there is no requirement for them to talk it over with an attorney, but they may benefit from doing this. An experienced legal professional can tell a couple what to expect during the process and review all the paperwork they intend to provide the court. It is a good way to avoid experiencing mistakes that could be time-consuming as well as expensive.
The custody situation is not so cut and dry anymore. Years ago, the court system used to feel as though a child’s place was with his or her mother as long as the mother was not abusing the child. Nowadays, judges consider the male parents much more heavily. Both parents must have proper representation in court battles because nothing is certain anymore. Judges will consider the following factors in a custody hearing:
Financial Stability
Financial stability is something that the judges will explore before they make custody decisions. They want to ensure that the custodial parent has enough funds to pay for the child’s education, clothing, meals and other needs. However, the parent who has more money will not automatically win custody in a just court. The judge may feel as though it is in the child’s best interest to leave the child with the parent who has the least amount of money and have the other parent pay child support. This part of the process is quite sensitive and will require both parties to submit financial documentation.
criminal Records
The criminal records of both parents are something that the judge will consider before he or she makes a final decision about custody. The court will want to review the arrest records to ensure that neither of the parents has domestic violence issues, drug charges or something else. The judge will consider the nature of the crimes, the disposition and the amount of time that has passed since the crime occurred. The intention is to place the child in the safest environment while not stepping on anyone’s toes who may have been reformed since the crime occurred.
Emotional and Physical Health
Another determining factor in a custody case is the health of the both parents. The court will review the physical and emotional state of both parties to ensure that the child can receive adequate care in his main home. For example, a parent who is confined to a wheelchair may be limited in the amount of care that he or she can give the child. However, that person will have the opportunity to produce medical records and proof of successful efforts before the court makes a final decision. The court will consider conditions that specialists place under the “mental health” umbrella, as well.
Cooperativeness
Cooperativeness plays a huge part in the judge’s decision. Both parents are supposed to try to foster a loving relationship with the other parent. That does not always happen, however, because of some lingering pain and resentment that the parents sometimes have because of the divorce. The judge will side with the parent who cooperates the most and tries to involve the other parent in the child’s life. Parents should never try to interfere with visitation no matter how much they feel their actions are justified. Such acts will destroy the credibility of the parent who performs them.
The Testimony of the Child
In some states, the court considers the child’s testimony. They usually do not allow the testimony of children who are younger than 14 years old, but some rare cases may allow it. It is important to hear how the child feels but not to give it too much weight because fights can be very nasty between parents. Manipulation can occur, and the child may just repeat what one of the parents impressed upon his or her mind. This category is a tricky one.
Divorcing parents should contact a reliable divorce attorney in NY and request representation today. A reliable attorney will try his or her best to paint the client in a favorable light.
