Divorce, Family Law

What Is the Difference between Contested and Uncontested Divorce Proceedings?

The couples who decide that they can no longer live together might want to obtain a divorce. There are two types of divorces: contested and uncontested.

Uncontested divorce refers to the proceeding where both parties wish to obtain divorce and there are no unresolved issues between them. The divorce proceedings are formality that gives the parties the final judgment terminating their marriage.

Contested divorce refers to the proceeding where either one of the parties objects to the divorce (claiming that the other spouse cannot obtain the divorce for some reason) or there are certain issues, such as child custody, child support, property distribution, that remain unresolved between the parties and the parties cannot agree on them without the judicial intervention.

How Long Does a Divorce Proceeding Take?

It depends on whether you divorce is contested or uncontested. Generally, Supreme Courts in different counties have different processing times for uncontested divorces (anywhere between 3 to 12 months). Our firm is familiar with different processing times in different boroughs of the City as well as Nassau and Suffolk Counties. We strive to obtain the fastest uncontested divorces for our clients.

If you divorce is contested, the time will depend on the complexity of the issues, including child custody, child support, equitable distribution and the like as well as time spend preparing the case and court schedule. Standard contested divorce takes anywhere between 6 to 24 months.

Do I Need a Settlement Agreement in My Case?

Settlement agreement refers to the agreement between the parties that determines all of the issues between them and is adopted by the court at the time the final judgment of divorce is rendered. Not every case needs a settlement agreement. The agreement is needed in cases where the parties have obtained marital property during their marriage (including pension, IRA, 401K accounts), parties have children under the age of 21y.o (23y.o. if child is a full time college student) or parties received professional degrees during the marriage.

How Can I Prevent My Spouse from Transferring Our Property into His/Her Name?

If you are afraid that your spouse will transfer your marital property into his or her name, you need to discuss these issues with an attorney as soon as possible. There are certain steps that attorney can take, such as commencing an action and filing notice of automatic orders, putting your spouse on notice that his/her actions of transferring marital property would result in the contempt of court.

Is All My Property Will Be Subject to Distribution upon My Divorce?

New York Law provides that all property acquired during the marriage is presumed marital property that is subject to equitable distribution upon the divorce, unless the property is deemed “separate property.” Generally personal property that was acquired prior to marriage, inheritance and gifts from people other than your spouse, will be deemed separate property.

Am I Entitled to Receive Spousal Support from My Spouse?

Most of the times in the uncontested divorce actions, the parties agree to waive maintenance. If the matrimonial action is contested, New York Law provides a specific formula for calculation of temporary maintenance while the divorce action is pending. The court will use the formula to calculate the spousal support and will factor things such as payment of household expenses and the like.

Permanent spousal support amount is based on various factors listed in the law, including disparity of income, ability of the spouse to obtain future employment, age of the parties, length of the marriage, contributions to the marriage, etc.

Can I Keep the House that Was Obtained During the Marriage?

Depending on the various factors such as age of your children, cost of staying in the house versus obtaining suitable housing, amount of equity in the house and other marital assets, the Court can allow the custodial parent to stay in the marital home until the youngest child graduates high school.

I Have Children Who Are Under 21y.o., Am I Entitled to Receive Child Support from My Spouse?

New York law provides that depending on the number of children of the marriage, non-custodial parent must pay child support. Child support guidelines are as follows:

17% for 1 child
25% for 2 children
29% for 3 children
31% for 4 children

In addition to basic child support listed above, non-custodial parent must contribute to medical, educational and child care expenses.

What if My Spouse Refuses to Pay Child Support? What if My Spouse Filed a Petition to Modify His/Her Child Support Payments?

If you have already hired an attorney to represent you in your divorce action, the issue of child support would be resolved by the court or agreed to by the parties before the final judgment of divorce is rendered.

If you had not filed for divorce, but your spouse refuses to pay child support for you children, you can contact the attorney to discuss how to proceed in this matter, including filing a petition in family court of the county where you reside.

In the event you find yourself on the respondent’s side in the family court proceeding in which you spouse seeks modification of child support, you need to contact an attorney, who will provide you with guidance as to how to proceed in such case.

What if My Spouse Is Fighting for the Custody of Our Children?

Similarly to the child support issue, issue of child custody would be determined by the court or agreed to by the parties before the final judgment of divorce is rendered. The issue of the child custody is determined by the court under the “best interest of the child” guidelines.

If your spouse commenced a family court proceeding seeking the custody of the children, and there is a matrimonial action already pending in Supreme Court, the Family Court action can be consolidated with the Supreme Court Action. If the Family Court action was resolved prior to the commencement of the matrimonial action or prior to the resolution of the matrimonial action, the court where your divorce action is pending will adopt the order of the Family Court.

In the event you find yourself on the respondent’s side in the family court proceeding in which you spouse seeks custody of the children, you need to contact an attorney, who will provide you with guidance as to how to proceed in such case.

Can I Refuse to Allow My Spouse See the Children If He/She Does Not Pay Child Support?

No, you absolutely cannot deprive your children from the time spend with your spouse. You can however contact the attorney who will help you to file appropriate documents with the Court in order for your children to receive allocated child support.

What if I Do Not Want My Children to Have Contact with My Spouse?

You cannot obstruct your spouse’s contact with your children unless there is the Order from appropriate Court.

What if My Spouse Is Threatening My Children and Myself?

If the threats are imminent, or your spouse has caused you or your children any bodily harm, contact your local law enforcement immediately.

If the threats are not imminent, you may wish to contact an attorney to discuss your options or you may file a petition with the Family Court in the county where you reside, requesting an order of protection against your spouse.

What if I disagree With the Decision/Order of the Court?

It depends on the Court and the person issuing that Decision/Order. In most of the cases you need to file an appeal within 30 days from the day the Decision/Order was entered. In some Family court matters you can file an Objection to the Order of Support Magistrate within 30 days from the receipt of such Order.