Divorce Explained
Marriage is a contract.
The only way to dissolve the marital contract is through a judicial decree of divorce.
Thus, the Courts typically grant divorces based upon one of the parties meeting specific legal criteria (otherwise known as “grounds”). A new no fault divorce ground was enacted in 2010 which enables spouses to divorce based upon the irretrievable breakdown of the marriage for more than six months. If one party swears under oath that the marriage has been irretrievably broken for more than six months, then that party can obtain a divorce if all: economic issues, support issues, parenting issues (including custody and visitation) and counsel and experts fees (if any) have been resolved by a legally binding agreement, or by the Court.
There are two other no fault grounds, which are referred to as conversion divorces.
The first is living apart pursuant to a separation agreement for a period of one year, provided that the party seeking the divorce has substantially complied with the terms of the agreement.
The second is living separate and apart for one year following a decree of separation issued by the Court.
The “fault” grounds are: (1) adultery, (2) cruel and inhuman treatment; (3) confinement to prison for more than three years; and, (4) abandonment for one year or more. With respect to abandonment, that ground also includes the refusal to engage in sexual relations for one year or more.
The term “Uncontested Divorce” in New York essentially means that all issues have been satisfactorily resolved by the parties. Where no issues are contested, the Court typically grants divorces on the submission of papers alone, without either party having to appear in Court in the context of a hearing or proceeding.
The term “Contested Divorce” used to refer to a situation where grounds were contested. With the advent of the no fault divorce law in 2010, the meaning of the term has changed to include the resolution of disputed issues, even where a no-fault ground is asserted. Now, the term “Contested Divorce” also refers to cases where a Court must determine economic issues, support issues, parenting issues, or payment of counsel and experts’ fees. A contested divorce that has wound its way through the Courts, which is settled before trial, is typically finalized by the presentment of a written agreement to the presiding Judge. Once that occurs, the Court will order the submission of all papers necessary to conclude the divorce by a specific date, usually 60 days after the presentment date of the written settlement agreement to the Court. If the papers are timely filed with the court, neither party has to appear in court again before the divorce is granted.
In divorce mediation, the goal is to arrive at a divorce settlement agreement, thereby avoiding having to appear in court and have a judge decide the issues in the case. However, if mediation is not right for you because there is a history of domestic violence, abuse, threatening behavior, or intimidation, then hiring the right divorce lawyer is a critical decision.
Please feel free to contact Long Island Divorce & Family Lawyer H. MICHAEL STERN at
516-747-2290 or 718-DIVORCE for a FREE CONSULTATION to discuss your divorce and family law matters.
My Long Island office is conveniently located in Garden City, Nassau County, NY.