DIVORCE – UNCONTESTED (NON-CONTESTED)

You can obtain an uncontested divorce when both parties have agreed on all divorce related issues such as spousal support, division of marital assets, child custody and parenting time, child support, health insurance and life insurance.

Even though the divorce is uncontested it is best for the parties to execute a Separation Agreement, which covers all of the terms of the parties post divorce relationship.

You can also obtain an uncontested divorce if your spouse does not appear in the divorce action or does appear but does not oppose the divorce.

In order to use the New York courts for a divorce, contested or uncontested, you must meet the residency requirements:

1. One of the parties is and has been a resident of New York for the year immediately before the action was started.

AND

a. the parties were married in New York, or
b. the parties resided in New York as husband and wife, or
c. the grounds for divorce occurred in New York.

2. The grounds for divorce occurred in New York and both are residents at the time the action is commenced.

3. Either party has been a resident for a continuous period of two years before the action was started.

The spouse seeking the divorce (the Plaintiff) must show that the other spouse (the Defendant) meets the statutory requirements.

The divorce grounds are:

Incarceration. Confinement of the defendant in prison for a period
of three or more consecutive years.

Adultery. The commission of a voluntary act of sexual or deviant sexual intercourse by the defendant with a person other than the plaintiff. Deviant sexual intercourse includes, but is not limited to, anal intercourse, fellatio, cunnilingus, pedophilia, zoophilia and necrophilia.

Abandonment. The desertion of the plaintiff by the defendant for a period of one or more years without just cause or consent and without intention to return.

Physical Abandonment is where one spouse moves out of the marital home for a year or more and literally deserts the family.

Constructive Abandonment (also known as constructive sexual abandonment). The defendant has refused to have sexual relations with the plaintiff for more than one year without just cause or the consent of the plaintiff.

Cruel and Inhuman Treatment. Conduct by the defendant toward the plaintiff that so endangers the physical or mental well being of the plaintiff as to make it unsafe or improper for the plaintiff to cohabit with the defendant.

Separation Decree. This is based on the same four grounds of fault described previously. In addition, lack of child support may be considered grounds for a separation decree, though not for a divorce. Finally, abandonment may be considered sufficient grounds for a Separation Decree, even if it is for less than one year.

Conversion Divorce. When a husband and wife mutually agree to divorce, and both desire to do so without allegations of fault, they can sign a detailed contract (a Separation Agreement) that sets forth their rights and obligations in terms of distribution of property, maintenance, child support, custody, visitation, and all other legal matters that pertain to the marriage.

After they have lived separate and apart, pursuant to the Separation Agreement for more than one year, either one may sue the other for “no-fault” divorce. The plaintiff must prove that he/she have lived up to the terms of the Agreement.

NOTE: Although you must generally prove fault to obtain a divorce, fault generally is not considered as a factor in settling property division (Equitable Distribution) or maintenance, unless the fault is “egregious” (i.e. trying to kill your spouse).