Frequent Questions on Divorce in New York
Freequently Ask Questions
01. Q. How does the New York uncontested divorce process work?
A. We can discuss any of your questions or concerns. First, we will provide you with 1) a retainer agreement that explains the scope of our services and your rights as a client; 2) an information form to complete; and 3) a Payment Fee Schedule. After we receive your signed retainer agreement and take the initial payment we will then prepare and be ready to file the initial Summons with Notice/Complaint. After your spouse signs and notarizes the papers, you will sign and notarize the final papers for filing with the court. You are free to come to the office, or we can mail or email you these documents. After approximately six months, the court will issue the judgment and you will receive a copy.
02. Q. Do you offer payment plans for uncontested divorces?
A. Yes. For your convenience, we do offer payment plans. Usually, clients separate the payments into either two or four parts. We require an initial payment of at least $300 at the initial meeting to get your case started. All payments are due prior to preparation of papers or filing with the court.
03. Q. Will I need to visit your office for a consultation?
A. Although preferred, office visits are not required. You can fill out our online information form and pay your fees though PayPal. Once we have been retained you will have an opportunity to consult with one of our matrimonial attorneys by phone or meet in our office. We are also always available for questions and inquiries by phone or email. All document communication can be handled by mail, email or fax. If you prefer, all documents requiring a signature can be mailed to you with clear instructions, and will include a return envelope for a prompt response. For your convenience, we offer day, evening and weekend appointments.
04. Q. What are the "grounds" for divorce?
A. The grounds for divorce are nothing more than a legally recognized reason for the dissolution of a marriage. While reviewing your particular case, our attorneys will be sure to explain the various options and their significance. In New York, a divorce can only be granted based upon one or more of the following causes of action: " Irretrievable Breakdown/Irreconcilable Differences " Actual Abandonment, or " Constructive/Sexual Abandonment, or " Imprisonment, or " Written and acknowledged Separation Agreement after living separate and apart for more than one year, or " Cruel and Inhuman treatment, or " Adultery.
05. Q. How do I know if I qualify as a New York resident?
A. That depends. New York maintains specific "residency" requirements that must be met before a couple can file for divorce within the State. In order for the court to accept your case, you and/or your spouse must fall into one of the "residency" circumstances outlined below:
1.You were married in NY and either you or your spouse is a resident of NY when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or 2.You and your spouse have resided in NY as husband and wife and either of you is a resident of NY when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or 3.The "grounds" occurred in NY and either of you has been a resident of NY for a continuous period of at least one year immediately preceding the commencement of the action, or 4.The "grounds" occurred in NY and both of you are residents of NY at the time of the commencement of the action, or Either of you has been a resident of NY for a continuous period of at least two years immediately preceding the commencement of the action.
06. Q. What is the advantage of having my soon to be ex-spouse personally served by a third-party process server?
A. If you have your spouse personally served by one of our process servers, then we have proof that he/she received notice of the divorce. This will allow us to finalize your divorce even if your spouse refuses or forgets to sign and return the papers. You might save money without personal service, but your case will expire if your spouse delays signing long enough. Therefore, we suggest that you choose personal service unless you are absolutely sure that your spouse will sign and return the papers to us. By the way, certified mail does NOT offer this protection.
07. Q. Do you serve all of New York State?
A. Yes, as a matter of fact, we serve almost anywhere in America as long as you have a concrete address to reach your spouse and your case remains uncontested.
08. Q. What if my spouse refuses to sign the papers after they are served?
A. Generally, in an uncontested matter, after your spouse is served they have the option of signing what is called an "Affidavit of Defendant" which allows the divorce to be immediately placed on the court's calendar, waiving all applicable waiting periods. If, however, your spouse fails to sign, you will be required to wait 40 days after the date of such service in order to proceed with the final steps.
09. Q. Must I use a process server for service of the divorce papers?
A. Using a process server will ensure that your spouse has been properly served according to state law. Process service also provides the proof of service required to finalize your divorce. If you are certain that your spouse will sign and return the divorce papers then using a process server is not required. Otherwise, to ensure that your case does not expire due to your spouse's failure to sign and return the papers in a timely manner, you may want to use a process server. We will arrange to serve the paperwork for a fee.
10. Q. If I don't know where my spouse lives can I still get an uncontested divorce?
A. Yes, you can still get an uncontested divorce called a "publication divorce." However, due to the extra filings and procedures involved, there are substantial extra costs, including motion preparation and filing, affidavits by a process server, and court-ordered advertising. Your total will likely be between $3,500 and $4,000. Unfortunately, if you cannot locate your spouse, this is the only way you can get divorced.
11. Q. Will I need to make any court appearances?
A. As long as your divorce remains uncontested, you will not have to make any court appearances. The only exception is in the rare event that the court orders an inquest, which may be required if there has been any history of domestic violence and/or orders of protection.
12. Q. What happens if an uncontested divorce becomes contested?
A. This is always a possibility. After your spouse is served with the divorce papers, they can decide to contest the divorce, meaning that they do not agree with the specified grounds, the relief sought, demands for support, or the terms of property division or child custody arrangements. If this happens, then your uncontested divorce becomes contested and it will cost you (and your spouse) significantly more legal fees and time, including court appearances. However, if our firm does decide to take your contested divorce case, our hourly fees are about half the price of most other NY attorneys.
13. Q. How can I avoid the possibility of my divorce becoming contested?
A. The best way for you to avoid a contested divorce is by arriving at a consensus with your spouse regarding such matters as child support and custody (if applicable), or the terms of property division. If at all possible, you should attempt to involve your spouse in the divorce process as early as possible. This will ensure that he or she is not surprised by your actions and therefore less likely to contest the divorce.
14. Q. Will anybody have access to the papers filed in court?
A. No. The law prohibits the clerk of the court and the court reporter from allowing anyone, other than a party or the attorney of a party to examine or copy of any of the pleadings, affidavits, findings of fact, conclusions of law, judgment of dissolution, written agreement of separation or memorandum, or testimony. The only way that this rule can be circumvented is by way of court order.
15. Q. How long will my divorce take?
A. Usually that depends on the level of cooperation we get from your spouse. If you and your spouse have come to an agreement regarding the division of property, child support, custody and visitation, then all that remains is to file a civil uncontested divorce. Although it is not required, the faster your spouse agrees to sign and return the necessary paperwork, the faster it can be finalized and filed. Please be aware that the court has its own time table.
Although I, as your attorney will complete and process your divorce documents very quickly, most of the waiting time is simply due to court backlog and lag time. Therefore, if everything runs smoothly, your case usually is finalized in either five or six months. Pay for "peace of mind" -- have a Licensed New York Attorney represent you in your divorce proceeding, for a truly reasonable price. We offer day, evening and weekend appointments. Contact us now to schedule an appointment to discuss your uncontested divorce, or any other legal issue that you may have.
16. Q. Do I need to have a Separation Agreement or Stipulation of Settlement prepared?
A. A Separation Agreement is a legal contract between spouses that addresses the division of assets and liabilities, as well as any support, maintenance, custody or visitation issues. A separation agreement is enforceable by the courts and may be filed with the county clerk. At the end of one year from the date of the agreement, either spouse may file for divorce based on a one-year separation pursuant to separation agreement. A Stipulation of Settlement is effectively the same document but generally prepared and filed along with the divorce papers and may be incorporated with the Judgment of Divorce. If you and your spouse have children or any significant assets and/or debt, it is advisable to prepare a stipulation agreement memorializing the terms of your divorce. The stipulation of divorce will provide a comprehensive outline of your agreements concerning all divorce related issues. This document is binding and enforceable by either spouse.