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Divorce Law
A divorce is legally the end of a marriage contract. The law takes the end of a marriage contract very seriously, and the process tends to be a bit more complicated than one might expect.
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Grounds for Divorce
Whether contested or uncontested, New York State requires that to end a marriage, one of the parties must provide a reason, or a "ground" for divorce. There are seven possible grounds for divorce in New York. The most recent is the No Fault divorce ground, which is the most common of all seven grounds. The No Fault divorce law became effective on October 12, 2010, and is codified as Domestic Relations Law 170(7). It permits a court to grant a divorce where one of the parties states, under oath, that the marriage has "broken down irretrievably for a period of at least six months."
The other six grounds for divorce are still available, though they are used far less frequently now that No Fault is available. Among those additional grounds are cruel and inhuman treatment, abandonment, constructive (or sexual) abandonment, adultery, and living separate and apart pursuant to a separation agreement or judgment of separation for a period of one or more years.
No matter which ground is claimed, the divorce itself is only one part of the process, since issues of dividing property, support, and parenting all have to be addressed.
Uncontested Divorce
An uncontested divorce means either that someone has filed for divorce, and the other spouse does not answer the complaint for a divorce (a default), or that the parties have agreed on how to resolve all the issues between them, have or will put that agreement in writing, and will be submitting that writing to the court along with a joint request for a divorce. For the latter method, typically a Settlement Agreement will be negotiated, prepared and signed by the parties. That written agreement will control how marital assets and debts are divided, as well as issues of support and parenting time. The divorce is then granted based upon the documents submitted to the court and the agreement is incorporated into the Judgment of Divorce This method typically will not require any party to appear in court, and it is usually the most cost effective and fastest way to divorce in New York.
Contested Divorce
A contested divorce is one where the parties do not agree on one or more of the issues involved in their case. Divorces can be fully contested, where all the issues are in dispute, or partially contested, where the parties agree on some issues but not others. For instance, parties may agree on how to settle the financial issues between them, but custody and parenting issues remain contested. Where there are one or more unresolved issues, the divorce is contested.
Even when a divorce begins as "contested," with the assistance of skilled attorneys and two parties willing to engage is realistic negotiations, consensus can usually be reached. Even the most contentious divorces are frequently resolved by an agreement. If an agreement is not reached, a contested divorce will end with a trial or hearing. In those cases, a judge, judicial hearing officer, or a referee will hear testimony from the parties and experts on their behalf in order to make a decision on the issues in dispute.
Same Sex Marriage
New York has joined several of its sister states in recognizing that same sex couples may marry and enjoy the same rights and privileges as heterosexual couples. So what does that mean for same sex couples who decide to end their marriage? In that realm not much has changed. Even before sanctifying same-sex marriages, New York State allowed its residents who married elsewhere to divorce in this state if their marriage was legally recognized in the jurisdiction in which they were wed. That meant that if a New York couple married in Vermont, and later decided to divorce, they could file for divorce under New York law. That is still true. If you are legally married, no matter where you were married and no matter what your gender, and New York has jurisdiction to hear your case (which typically means you have lived here for the required length of time), then you can file for divorce in New York and be protected under its laws. The laws are the same for everyone. Every legally married couple is entitled to the same rights, privileges, and protections as long as they are entitled to divorce within this state.
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Francine Pickett Cohen
Partner
Francine Pickett Cohen, Esq. has been providing quality legal services exclusively in Family and Matrimonial Law since 1991. Ms. Cohen established her legal practice in Staten Island in 1998, strengthening her ties to the Staten Island community where she grew up.
Olga Zagika
Associate Attorney
Olga Zagika has been an associate with The Law Offices of Francine Pickett Cohen, LLC, since 2013, where she specializes in all areas of family law, including divorces, custody, child and spousal support, equitable distribution and adoptions.
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