Uncontested Divorce simply means that both spouses agree to the dissolution of their marriage and that they have agreed on all terms of their divorce, including financial support, child custody, separation of property and others.
Uncontested divorces are the fastest and are the least stressful process for both spouses.
As of 2010, New York has enacted no-fault divorce, in which the grounds for a divorce is one party of the marriage claiming an “irretrievable breakdown” of the marriage for a period of at least six months. An uncontested divorce is a divorce in which both parties of the marriage agree that all economic issues, such as the division of marital property and maintenance (alimony), and other ancillary issues, such as child custody and child support, have been resolved. Both parties may explicitly agree that all economic or other issues have been resolved, or one party may agree by default after being served and given forty days to contest the economic and ancillary issues of the divorce. An uncontested divorce is a quick and straightforward way to be divorced unless the divorce becomes contested by a party.
As oppose to uncontested divorces, numerous issues arise in the contested divorce proceedings. A contested divorce is a divorce in which one or both parties request the court to intervene in the economic and ancillary issues of the divorce, such as division of marital property (equitable distribution in New York), temporary and permanent maintenance (alimony), and child custody and child support. A contested divorce is usually a long and complicated process, with both parties having to disclose financial and property assets, the court having to determine which property is subject to distribution and then dividing them between the two parties, and to resolve issues such as child custody and child support. In a contested divorce, the court intervenes in the economic and ancillary issues before granting a judgment of divorce.
Child custody and Visitation
Perhaps the biggest issue that people face in divorce proceedings is getting custody of the children. In New York, child custody is determined by the policy of “the best interests of the child.” Most frequently, child custody is awarded to one of the parents of the child.
In the context of a divorce proceeding, both parties may come to an agreement for who gets custody of the child, whether it be joint legal custody, sole custody, and which parent has physical custody of the child.
What does the term, “the best interest of the child” mean?
If the parties cannot agree on child custody, the court may intervene and determine child custody for the parties under the policy of “the best interest of the child.”
Usually, the court will weigh various factors in order to determine which parent should receive custody, such as the parenting skills of each parent, the physical and mental health of the parents, work schedules and childcare plans of each parent, etc. Most often, child custody cases are highly fact-specific.
Very often, the noncustodial parent has the right to visitation of the child. Thus, the parties may agree upon a visitation schedule, or the court may determine a visitation schedule for the noncustodial parent, which may be a specific visitation schedule.
One common issue regarding visitation is the case in which the custodial parent wishes to move with the child that disrupts the noncustodial parent’s right to visitation. In these cases, the court will consider the policy of “the best interests of the child” and look at the economic, educational, and emotional benefits and detriments to the child of the move.
Under New York law, parents are obligated to financially support their children, and the parent without custody of the children can be compelled by court order to pay a “fair and reasonable sum” according to their means to the parent with custody. Parenthood of the children is required for child support obligation, which means that a mother seeking child support from the father must establish paternity. Paternity may be established even if the man is not the biological father of the children, who may still be the legal parent of the children. Child support may be modified, increased, or decreased, based on the change in economic circumstances of the noncustodial parent. The policy that determines child support obligation is the “best interests of the child”, and the family court will consider this along with the guidelines in the Child Support Standards Chart, which can be found here:
Premarital, or prenuptial agreements are agreements two parties enter into before the marriage primarily to resolve the economic consequences of divorce. The court will enforce the prenuptial agreement in a divorce if the agreement was entered into according to the proper procedure, and if the terms of the agreement are fair and not unconscionable. Prenuptial agreements must be entered into willingly by both parties, who are informed that each party is strongly encouraged, but not required, to be represented by separate counsel, and each party must disclose their financial and property assets to each other for the prenuptial agreement to be valid. The prenuptial agreement usually outlines which of each party’s assets will be considered separate property, and therefore not subject to division in a divorce. The prenuptial agreement may limit or eliminate maintenance (alimony) for the less-monied spouse as a consequence of divorce, so long as each party is able to support themselves financially prior to marriage and after the divorce.
Postnuptial agreements are agreements two parties enter into during a marriage to primarily resolve the economic consequences of a divorce. Postnuptial agreements must be entered willingly by both parties, who are informed that each party should, but not required, to be represented by separate counsel, and each party must disclose their financial and property assets to each other prior to entering into the postnuptial agreement. The court will scrutinize the procedure the postnuptial agreement was entered into more strictly than a prenuptial agreement, because New York recognizes a special relationship between married spouses, and consider each to have a fiduciary duty to each other. The court will consider the fairness of the terms of the postnuptial agreement more heavily than a prenuptial agreement, and determine if the agreement is “too overreaching” on the part of the more-monied spouse. In addition, in contrast to the exchange (consideration) for prenuptial agreements is the marriage itself, postnuptial agreements require both parties to promise each other consideration in order for the postnuptial agreement to be valid.
As of 2010, New York has introduced no-fault divorce, which allows for one party of the marriage to claim an “irretrievable breakdown of the marriage” for a period of at least six months to commence an action for divorce. Separation agreements as a grounds for divorce, therefore, is not required, or encouraged, as of 2010. However, separation agreements may still be entered into by spouses, and the agreement includes the terms of the separation, usually the means in which the more-monied spouse will support the less-monied spouse.
Order of Protection and Temporary Restraining Order
An order of protection prohibits an individual from engaging in certain behavior. For example, a court can order a person to “stay away” from another person or to refrain from contacting another person in whatever method. Any violation of the order could result in arrest, criminal contempt, and incarceration.
A person seeking an order of protection against an individual based on domestic violence may first obtain a temporary restraining order in family court by filling out the required forms and offering a sworn statement detailing facts regarding the domestic violence. The judge may grant the temporary restraining order, without the individual it is ordered against appearing in court, after reviewing the facts of the alleged domestic violence. The person must then serve the individual with the temporary restraining order and a notice to appear in court for a hearing for a permanent order of protection. An order of protection must be based on an enumerated or recognized family offense.