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.
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.
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.
My divorce, custody and child support litigation changed as the situation changed through the years (eg. Changes in child custody as to who was the custodial parent). In an atmosphere very unfamiliar and intimidating to me, I was so much in need of a stable support who was not only familiar with the court system but who could portray my needs and the multiple factors involved in my case to those making the decisions. Fran has been there for us as this support from the very beginning in 2006, through the years when I needed her legal support even to helping to facilitate a domestic settlement agreement last year. In my experience, it was always an instant relief when I'd see her on arrival to court and with Fran sitting beside me in the processes, I felt confident that I had a skilled advocate.
During my divorce and custody hearings over the last four years, I have worked with multiple attorneys in various states. I initially required the needs of an attorney in NY who would work closely with a jurisdictional attorney from another state, but Ms Cohen was such an outstanding litigator and protagonist, and an extremely skillful communicator that i continued with her throughout the years and have never regretted one moment working with her. She has intelligence, character and grit and will fight like hell for her client. She is a virtuoso in the Richmond Court system where I have witnessed her finesse. She understands the nuances of the court system and the law as well as or better than any attorney I have worked with. She comes highly recommended.
Mrs. Cohen was very professional to work with, while being compassionate as well. She was timely with returning phone calls and/or e-mails. I would recommend Mrs. Cohen to anyone seeking legal counsel in her field.
Francine Cohen is a wonderful attorney. From the initial phone consultation to the completion of my case she was definitely someone I trusted. She is extremely knowledgeable and very professional. She knows her field of law extremely well and keeps abreast with any changes of the law. I trust her completely.so much so that when my daughter needed an attorney there was no question who she would retain. That was Francine Pickett Cohen. I would refer anyone to her.
I feel Francine to be a very patient, understanding and talented individual. Even if she does not agree with what you want to accomplish, she aids you in fulfilling that which you request. Francine has a way of making you feel very comfortable at a trying time in your life.
Ms. Cohen did an excellent job both in communicating risks and benefits in terms of strategies. Her written and verbal arguments were extremely well done and persuasive. She had both tactical and strategic insights that, combined with her communication skills, led to complete success in a situation in which even partial success would have been fortuitous. The strength of her wording, her trenchant arguments and her persuasive briefs were all outstanding.
Francince Pickett Cohen not only gives me the best advice during this difficult time but she is also compassionate. Francine is very professional, knowledgeable and knows her stuff. I feel very confident with her by my side. I would recommend her and this law firm to others.
Francine Pickett Cohen
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 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.