FAQ Resource - Uncontested Divorce

Answers from a NYC Uncontested Divorce Lawyer

Q: What is the difference between uncontested divorce and contested divorce?
Q: What are the advantages of an uncontested divorce?
Q: Is uncontested divorce right for me and my spouse?
Q: What are the grounds for divorce in this state?
Q: How is property divided in a divorce?
Q: What determines whether alimony will be paid?
Q: How do we decide child custody?

What is the difference between uncontested divorce and contested divorce?

In an uncontested divorce, you and your spouse negotiate an out-of-court settlement which addresses all the important aspects of the divorce based on your own preferences and agreements. In a contested divorce, on the other hand, you and your spouse cannot come to agreements and bring the case before a judge who decides on these issues for you.

What are the advantages of an uncontested divorce?
In either type of divorce, you end up being required to abide by the terms of divorce, but an uncontested divorce allows you and your spouse to stay in charge of the process, rather than being subject to the dictates of the judge. An uncontested divorce is also more private, as you will not have to expose your personal finances and private affairs to public scrutiny in the courtroom. Another advantage is that it is nearly always faster and far less expensive. One of the chief advantages of this approach is that it often enables the parties to maintain a more amicable and respectful relationship, which can be especially important when there are children involved.

Is uncontested divorce right for me and my spouse?
Uncontested divorce is generally a far better approach than contested divorce, but it is not necessarily right for everyone. If you and your spouse simply cannot get along and find it difficult to agree on anything, uncontested divorce may not be an option for you. If, on the other hand, you are both determined to work out a mutually beneficial settlement and are willing to engage in respectful and constructive negotiations, you can most likely achieve success in an uncontested divorce.

What are the grounds for divorce in this state?
New York was the final state in the country to allow no-fault divorce, so it is now possible for you and your spouse to file for divorce without the necessity of proving that either party is responsible for the failure of the marriage. All that is required is that you can demonstrate that the marriage is "irretrievably broken." The fault based grounds, which include cruel and inhuman treatment, willful abandonment, three consecutive years of imprisonment of either spouse, and adultery, may influence factors such as the payment of spousal support or child custody. These factors do not, however, normally come up in an uncontested divorce.

How is property divided in a divorce?
The division of assets and debts in a New York City divorce is decided according to the legal principle of equitable distribution. This means that the goal is to reach a division which is fair, even if it is not strictly equal. Rather than making an even 50-50 split of your shared assets and debts, the division will be made according to factors such as each party's contributions to the marital estate, which parent will receive child custody and what each party's financial circumstances will be at the conclusion of the divorce.

What determines whether alimony will be paid?
Spousal maintenance is not automatically awarded in any divorce, and there is no presumption that it will be paid to either the wife or the husband. Either spouse may request support payments, based on factors such as the duration of the marriage, each party's present and future earning capacity, career sacrifices made while acting as a homemaker, and how long it will take for the recipient to acquire the training and education to become financially self-sufficient.

How do we decide child custody?
In your uncontested divorce, the terms of your parenting plan will be decided by you and your spouse. The court will, however, not approve the plan unless it appears to serve the best interests of the children. The arrangements for child custody and visitation are influenced by questions about each parent's mental and physical health, each parent's lifestyle and ability to provide for the children's needs, and even the children's preferences if they are sufficiently mature to express these.

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