Contested Vs. Uncontested Divorce In New York: What's The Difference?

If you're considering getting a divorce in New York, it's important to understand the differences between those which are contested, those which are uncontested and which grounds for divorce are recognized in New York – which is the only state in the country that does not recognize no fault divorce. Elliot Schlissel, a New York Lawyer whose practice area includes divorce, estate planning and many others, provided the details in a recent interview.

Uncontested NY divorce

In an uncontested divorce, one party sues the other party for divorce and the parties act in a reasonable, amicable and mature manner and they work out the details of the division of property, custody, child support, spousal maintenance, visitation, who pays the debts and all other issues. According to Schlissel:

The written agreement becomes the basis of the terms in the divorce judgment. One party submits the divorce to the court and the other party allows the divorce to be taken against him or her. An uncontested divorce usually takes place when the parties are in agreement regarding custody, visitation, support and division of assets. This is set down in a detailed written agreement and thereafter one party simply defaults (ignores the summons or acknowledges that they are neither admitting nor denying the allegations in the summons and complaint for divorce against them.

Contested NY divorce

All other divorces fall into the contested category, according to Schlissel. “Contested does not necessarily mean that the parties are actively fighting. It just means they haven’t resolved all of the issues in their marriage. The case gets put on the court’s calendar, there are court conferences and very often the court tries to motivate the parties to work out a settlement. In the event the parties can’t settle their issues, there is eventually a trial.”

Recognized grounds for a NY divorce

The four recognized grounds for a New York divorce, according to Schlissel, are:

1. living separate and apart under a written separation agreement for a period of one year or more;
2. cruel, inhuman treatment, which has two sub-categories, a) mental cruelty or b) physical cruelty;
3. abandonment or sexual abandonment for one year; or
4. adultery.

He says that the parties either can work out the details, which might be called an uncontested divorce as described above, or they litigate it through the courts. If one party can prove his or her case on the grounds issue, they then get to the issues of custody (if there are children) and visitation. The parties can either work out the details or the court can enter a decision concerning the issues of child support, spousal maintenance, equitable distribution of the marital assets, equitable distribution of the debts (the debts as well as the assets are divided) and all other issues involving the marriage.