Uncontested Divorce in New York State
An uncontested divorce is one where neither party disagrees with any aspect of the divorce.
A party seeking a divorce in the state of New York may qualify for an Uncontested Dissolution/Divorce if they meet certain requirements.
If one party does not agree to the divorce, the proceeding is considered a Contested Dissolution/Divorce. This can be the case when one party disagrees with any part of the divorce, such as how the property will be divided, child custody, or visitation; or they can even disagree with the divorce itself. These kinds of divorce cases can become very complicated very quickly and usually require an attorney, so it is recommended that you consult with one before filing a proceeding.
Divorces in New York State can only be filed in Supreme Court and are not considered finalized until a Judge has issued the Judgment of Divorce.
You cannot get a divorce in Family Court; that is for custody, visitation, and child support issues, which you can deal with before you file for a divorce.
The person who files for the divorce is called the Plaintiff.
The spouse (the husband/wife the Plaintiff wants to divorce) is called the Defendant.
To qualify for an Uncontested Divorce, the parties must meet the following qualifications:
BOTH PARTIES AGREE TO ALL TERMS AND CONDITIONS OF THE DIVORCE;
There is no real or personal property, and no assets to be divided among the parties;*
There are no minor children (under 21) to the marriage;**
The marriage between the parties has been over for at least six (6) months;
Both parties- or at least one of the parties, preferably the Plaintiff- reside in the county in which they intend to file;
The Plaintiff knows the current residence or place of employment of the Defendant and their personal details; and
The Defendant will accept the service of and execute an Affidavit of Defendant in the presence of a notary public, and will return the Affidavit to the Plaintiff for filing.
*If there are minor children under the age of 21, a Marital Settlement Agreement (MSA) or Separation Agreement must be filed with the divorce. This agreement lists out the details of the terms that were worked out between the Plaintiff and the Defendant, among which are child custody, child support, visitation schedule, etc.
**If the parties have assets to divide, a Marital Settlement Agreement (MSA) or Separation Agreement must be filed with the divorce. This agreement lists out the details of the terms that were worked out between the Plaintiff and the Defendant, among which are the division of certain assets such as life insurance policies, retirement plans, 401K or IRA plans, or real or personal property, etc.
The process to file for uncontested divorce is straightforward and is significantly less complicated than it seems.
First, the Plaintiff fills out and executes a packet of documents provided by the Court and files them, providing the Court with the original and two photocopies of the packet. The fee for filing the initial packet of paperwork is $210.00. The court file-stamps the photocopies and issues an Index Number, or case number, for the proceeding; which the Plaintiff writes on the photocopies returned to them.
Secondly, the Plaintiff arranges service of the file-stamped paperwork that was filed with the Court, along with an Affidavit of Defendant, on the Defendant. The Plaintiff may hire a process server to do this, or they may request that the service be made by someone they know as long as the person is not a party to the case, and is over the age of 21. Once service is made, the Defendant would review the Affidavit of Defendant and consult with an attorney, should they so choose. If in agreement with the terms of the divorce, the Defendant would execute the Affidavit of Defendant in the presence of a notary public and return the original to the Plaintiff.
Thirdly, the Plaintiff would take the Affidavit of Defendant, the original documents that were file-stamped with the Court and a second set of documents provided by the Court that include the Judgment of Divorce, and file all of them with the Court. The fee for filing this set of documents is $125.00. The Plaintiff must include a self-addressed stamped envelope with the packet which the court will use to mail a Judgment of Divorce executed by the Judge upon finalization of the divorce.
Upon receiving the divorce documents, the Plaintiff is required to mail a copy of it to the Defendant and submit proof to the Court that it was done.
If either party wishes to obtain a certified copy of the Judgment or Certificate of Divorce from the Court, they can go to the Court in person and provide identification to pick one up. The fee for a certified copy varies in each county and can be verified online in the county clerk’s office website.
*Please keep in mind that if there are any inconsistencies or errors with the paperwork, the Court will contact the Plaintiff by mail to request modifications or corrections. This may delay the process. It is important that the parties be truthful and provide all of the relevant information requested by the Court in order to facilitate the divorce proceeding.