Uncontested Divorce in New York: What It Means and How the Process Works

An uncontested divorce is the fastest and least expensive way to end a marriage in New York, and most Suffolk County divorces end up uncontested one way or another. But the word gets used loosely. Here is what it actually means, what you and your spouse have to agree on, and what happens between the first conversation and the signed judgment.

What “uncontested” actually means

A divorce is uncontested when both spouses agree to end the marriage and agree on every issue the court would otherwise have to decide. If you agree on everything except one thing, the case is contested on that one thing, and that is enough to put you on the litigation track. The good news is that “uncontested” describes where the case ends, not where it starts. Many couples begin with real disagreements, negotiate them through their attorneys, sign a settlement agreement, and finish as an uncontested divorce without ever appearing before a judge.

Uncontested is not the same as amicable. You do not have to like each other. You have to be able to sign the same document.

The ground for divorce

Since 2010 New York has had a no fault ground: the marriage has been irretrievably broken for at least six months. One spouse states that under oath, and the other does not have to agree with the characterization. The old fault grounds, such as cruel and inhuman treatment or abandonment, still exist, but in an uncontested case there is almost never a reason to use them. The six month period is a statement about the marriage, not a waiting period after filing.

There is also a residency requirement. In most cases at least one spouse must have lived in New York continuously for one year before filing, or two years if the marriage took place outside New York and neither spouse lived here as a married couple.

What you and your spouse must agree on

The court will not sign a judgment that leaves loose ends. Every one of the following has to be resolved in writing:

• Custody and parenting time, if you have children under 21. Who makes major decisions, where the children primarily live, and a specific schedule for weekdays, weekends, holidays, and summer. Vague language here is the most common reason an agreement comes back from the court or causes a fight two years later.
• Child support. New York applies the Child Support Standards Act formula. You may agree to a different number, but the agreement must state what the formula would have produced and explain why you are departing from it. Health insurance for the children and how unreimbursed medical, child care, and education costs are shared must also be addressed.
• Spousal maintenance, formerly called alimony. New York has a guideline formula for post divorce maintenance. The agreement must state the guideline amount, and either provide for maintenance or recite that both spouses are waiving it knowingly.
• Equitable distribution. Who keeps the house, how equity is paid out, how bank and retirement accounts are divided, who takes which vehicles and debts, and what happens to any business. A pension or 401(k) split requires a separate court order, called a QDRO, after the divorce.
• Health insurance. New York requires each spouse to acknowledge that they may lose coverage under the other spouse's plan once the divorce is final.
• Counsel fees and any other claims between you, which are usually mutually waived.

If one of these is unresolved, the case is not ready. If all of them are, an attorney can usually have the agreement drafted within days.

One lawyer cannot represent both of you

This surprises people. Because your interests are legally adverse, even in a friendly divorce, a single attorney can represent only one spouse. The other spouse is free to hire their own lawyer, to have a lawyer review the agreement before signing, or to proceed without one. In the firm's uncontested cases, the attorney represents one spouse, drafts the agreement and all of the court papers, and sends the other spouse the papers to sign with a clear written statement that they may consult counsel. Most unrepresented spouses sign; some have a lawyer look it over first, which is a sensible thing to do and rarely changes the outcome.

The documents

An uncontested divorce in New York is a stack of paper, and the court reviews all of it. The package typically includes:

• The settlement agreement, signed by both spouses before a notary, which is the document that actually sets the terms
• A summons and verified complaint stating the ground for divorce
• The affidavit of defendant, in which the other spouse acknowledges the case, consents to the divorce, and waives the right to answer
• The plaintiff's affidavit of facts supporting the complaint
• A child support worksheet and the required Child Support Standards Act and health insurance notices, if there are children
• The note of issue, which tells the court the case is ready for decision
• Proposed findings of fact and conclusions of law and the proposed judgment of divorce, which the judge signs
• Several administrative forms, including the certificate of dissolution that goes to the state

Every form has to be internally consistent with every other form and with the agreement. Mismatched dates, a missing initial, or a support figure that does not match the worksheet will get the package rejected, which on a busy Suffolk County calendar can cost weeks.

Step by step: how the process works

1. Consultation. You meet with an attorney, free in this firm's case, to confirm that the terms you have agreed on are complete and that your case qualifies. If there are gaps, you find out now rather than after paying a fee.
2. Intake and drafting. You provide the basic information: dates, children, incomes, assets, debts, and the terms. The attorney drafts the settlement agreement and the full set of court papers.
3. Review and signing. You review the agreement with your attorney. Your spouse receives it with the affidavit of defendant and signs before a notary.
4. Filing. The summons and complaint are filed with the Suffolk County Clerk to obtain an index number, and the rest of the package is filed with the Supreme Court. Court filing fees, currently roughly $335 to $400 in total, are paid at this stage and are separate from attorney fees.
5. Court review. A matrimonial clerk and then a judge review the package. In nearly all uncontested cases no appearance is required. If something needs correction, the attorney fixes it and resubmits.
6. Judgment. The judge signs the judgment of divorce and it is entered by the County Clerk. You are divorced on the date of entry. The attorney obtains certified copies for your records, for name changes, and for any retirement account transfers.

How long it takes in Suffolk County

The part you control, negotiating and signing the agreement, can take a week or several months. The part the court controls, reviewing the package and signing the judgment, generally takes a few months depending on the backlog at the time. A clean package filed by an attorney who handles these regularly moves faster than one that bounces back for corrections. For a fuller picture see How Long Does a Divorce Take in New York?

What it costs

Because the work is predictable, most Suffolk County attorneys charge a flat fee for an uncontested divorce. This firm charges $2,500 flat, which covers the consultation, the settlement agreement, every court document, filing, and follow up through the signed judgment. Court filing fees are extra. A separate QDRO, if a pension needs to be divided, is quoted separately. If the case becomes contested, you are told before any additional work is done.

Mistakes that turn an uncontested divorce into a contested one

• Agreeing on “the big things” and assuming the details will work out. The details are the agreement.
• A parenting schedule that says “reasonable visitation” instead of specific days and times.
• Agreeing to a child support number without understanding what the formula would produce, then having second thoughts when the worksheet is prepared.
• Leaving the house unresolved. “We will sell it eventually” is not a term the court can enforce.
• Forgetting about retirement accounts, which are often the largest asset after the house.
• Using an online form service. The forms are the easy part; the agreement is where the judgment of an attorney matters, and a defective agreement can be challenged later.

Is an uncontested divorce right for you?

If you and your spouse can sit down and resolve the issues above, even with some negotiation, an uncontested divorce will save you a great deal of money and most of a year. If you cannot, or if there is a history of domestic violence, hidden finances, or a significant imbalance in bargaining power, you should not sign an agreement just to keep things uncontested. A free consultation will tell you which situation you are in. The firm handles uncontested divorces throughout Suffolk County from its Hampton Bays and Hauppauge offices.