From a legal perspective, “divorce” is simply the formal process of ending the marriage contract.
Anyone who has ever been touched by this process, though, knows that the real thing isn’t quite that simple. Because—no offense to the legal definition or anything—but it doesn’t recognize the emotional toll divorce can have on a family.
With so many unaccounted-for pitfalls, here are a few things to know about your options for divorcein New York, and how you can make the process run as smoothly as possible.
The Type of Divorce Matters
Contrary to popular belief, getting divorced doesn’t have to be a contested, drawn out affair, involving a courtroom battle. Indeed, there are several ways to get divorced, almost all of which are more efficient and cost effective than the stereotypical litigated divorce.
When considering options, keep in mind that it’s always possible to switch between the options – so you can try out a more negotiation based option and still switch to a more litigation based option if needed..
In New York, an uncontested divorce is available in one of two instances:
First, you and your partner have resolved all issues of custody, child support, spousal support (aka: alimony), property and debt division, and counsel fees in a written, and properly executed, settlement agreement. I call this the “settlement agreement” uncontested divorce.
Second, you and your partner have no assets (like: a house, bank accounts – joint or individual, furniture, etc.) no children, and make relatively the same amount of money.
If you are in either of these two categories, you can move forward with an uncontested divorce. This method requires no court conferences. It is simply a process wherein you, or your attorney, file with the court a significant amount of papers to prove to the judge that the issues are all resolved and you should receive a divorce. The judge reviews the papers and, if acceptable, signs the Judgment of Divorce.
This option is typically best for individuals who haven’t been married long, don’t have children, and have few (if any) marital assets.
While it’s possible to execute an uncontested divorce without an attorney, it’s not advisable. Divorce law is highly nuanced, and it’s too easy to give up essential rights on your own without even realizing you are doing so. At the very least, have a family law attorney review your matter before you file, to ensure there aren’t any red flags.
On the other hand, if you’re like most couples—the kind who have children together, have assets (in joint and/or individual names), and may have different income levels – then you are required to resolve those issues before you are eligible for a divorce. This means that your divorce is considered “contested.” A contested divorce does not mean a nasty divorce – it just means that you have some issues to resolve before you can qualify for an uncontested divorce via the “settlement agreement option.” There are 3 main ways to solve a contested divorce – mediation, collaborative divorce, and litigation.
During mediation, couples meet with a licensed, third-party individual (called a “mediator”) to attempt resolution without court interference. Everything discussed is confidential and non-binding, which means it cannot be used against you in court at a later date. In addition to saving time and money, couples who successfully navigate mediation have the added benefit of retaining more control over their final outcome.
Mediation can be in person or virtually, via Zoom or similar platform. It is a flexible process and can be as fast or as slow as the couple needs it to be. The parents will attend each mediation session and the mediator will go issue by issue with them to help facilitate resolutions. Once all issues are resolved, the parents will sign a settlement agreement and can then proceed with an uncontested divorce.
Similar to mediation, collaborative divorce involves working towards reaching an out-of-court settlement that is tailored to the specific needs of the family. In collaborative divorce, the parents each have their own attorney and there is typically an individual hired as a “family professional” who helps guide the communication to make sure that the goals and values of the family are reflected in the resolutions reached.
This process also involves other experts as may be necessary – such as financial advisors and child psychologists, all of whom work—not for the benefit of one side over the other—but toward the goal of overall resolution.
The hallmark of the collaborative process is that the parents sign an agreement to resolve the matter within the collaborative framework. All settlement discussions are confidential and cannot be used in a subsequent court proceeding (should the collaborative fail and litigation be necessary).
Sometimes, despite everyone’s best efforts, reaching a solution without court involvement isn’t possible—and that’s okay. The court is always on standby.
Litigation is a formal court process where there is a judge assigned to the matter and court conferences are held. At each conference, the judge will work to try and facilitate a settlement via negotiation. If a settlement is not achieved, the matter heads to trial where both sides present facts to a judge, who then makes a final decision, and complies these directives into a final order.
Litigation can be very expensive and incredibly time consuming. Those who can make an alternative method of divorce work should definitely try, since those processes are almost guaranteed to save time, money, and offer more satisfactory results.
Grounds: To Blame, Or Not to Blame?
In layman’s speak, “grounds” are simply the reasons you want a divorce. This is something that must be listed in your original complaint, and in the state of New York, grounds can be filed under two categories: “fault” or “no-fault.”
Before proceeding any further, you should know that in 2010, New York State implemented “no fault” divorce and, while fault-based grounds still exist…they are rarely, if ever, used. The reason being that judges do not want to spend time arguing about why the marriage ended. They want the parties to focus on resolving the important issues of custody, support, and property division – rather than arguing about who did or didn’t do what to whom.
The benefit of no-fault divorce is that the divorce process is faster, and often a lot cheaper, than arguing about grounds. In addition, with a no-fault divorce, you are guaranteed to obtain a divorce. Filing under fault based grounds means you need to prove that there is enough wrong with your marriage to require a divorce. Simply put – if you could not prove your marriage was “bad enough” you…remained married. Yeah. No one wants that, which is why no-fault is a great option.Fault-Based Grounds
While most states have done away with fault, New York is one of the few that still allows blame to factor into divorce.
When a divorce is filed on grounds of fault, judges must determine whether the party suing for divorce has enough “grounds” for divorce. There were several grounds but most often parents attempted to file under cruel and inhuman treatment or adultery.
To the wronged party, this might sound like a great arrangement. However, keep in mind, a judge needs a high (very high) degree of proof to grant a fault based divorce.<spanconverted-space”> This meant that fault-based divorces were both contentious and costly -with no guarantee of a win. Because of this, the advent of no-fault divorce was a truly welcomed option for divorce.
In a no-fault divorce, neither party shoulders blame for the breakup. Instead, your complaint will simply state that the marriage has been “irretrievably broken for a period of 6 months or more.” This statement is based upon your subjective belief and you cannot be asked to prove whether the marriage is “irretrievably broken.” It is broken if you say it is broken, plain and simple.
Filing this way save partners a lot of emotional strife, and makes transitioning into the next phase of your life much easier, especially if have kids.
Lauren L. Hunt: New York Divorce Attorney
Divorce can feel like the end of the world. It’s stressful, heartbreaking, and incredibly isolating, especially if friends and family start taking sides. While it’s impossible to completely shield yourself from the emotional fallout of this endeavor, divorce is not something you have to do alone. By hiring the right attorney, you can enter the arena not only armed with a passionate advocator, but with another set of shoulders to share the burned.
If you have more questions about divorce in New York, and how these laws will affect your dissolution, I want to hear from you. Schedule a consultation by calling the offices of Lauren L. Hunt at (518) 282-7300, or, make an appointment online. While divorce is an end, it’s also a beginning.
And it’s one I want to help you reach.
Frequently Asked Questions
What are grounds for divorce?
Can I get divorced in New York?
- One spouse must have lived in NY for two continuous years.
- One spouse must have lived in NY for one year, and you either:
- Got married in NY;
- Lived in NY as a married couple; or,
- The grounds for your divorce happened in NY.
What are the different types of divorce?
- Resolution without an attorney—when both parties agree to all the terms on their own and have those agreements in a legally binding settlement agreement.
- Mediation—informal negotiations between the parties that are guided by a neutral, third party “mediator,” who helps the spouses try and reach a settlement.
- Collaborative Divorce or other out of court negotiated settlement—a more structured process for out of court negotiations whereby each spouse hires their own attorney so they have independent legal advice. The couple agrees to negotiate without running to court.
- Litigation—a formal court-based action, possibly ending in trial.
What is Divorce?
- Child Custody—resolving terms for legal and physical custody of the children.
- Child Support—funds paid to support the children.
- Equitable Distribution—dividing assets and debts acquired during the marriage (which includes dividing assets which may only be in one spouse's name).
- Spousal Maintenance—money paid by one spouse to help the other due to a difference in incomes.
- Counsel Fees—monies paid to allow a spouse to have legal counsel.