Table of Contents
Introduction
New York has No Fault Divorce. Under this law, divorce will happen and your spouse can’t stop it. The issues of property, money and children must be resolved before the divorce will be granted.
History of No Fault Divorce in New York
New York was the last state in the United States to adopt no-fault divorce, doing so in 2010. Before this change, couples seeking divorce in New York had to prove fault grounds such as adultery, cruelty, abandonment, or imprisonment. The introduction of no-fault divorce marked a significant shift, reflecting a broader societal change toward recognizing the complexities of marital breakdowns and the need for a more humane approach to divorce. No fault divorce is not synonymous with “uncontested divorce.” An uncontested divorce is where the parties agree on every single issue. We can and do have contested no-fault divorces, where the divorce is certain, but the parties are still arguing over children, money and property.
The court has no authority to decide property division, post-divorce maintenance or even child custody is based upon fault.
There is one exception, and that relates to provable and severe domestic violence.
In the dark ages (pre 2010) we actually had to prove marital fault. Now, while it may make an innocent spouse feel good to prove the ex is a horrible person, it was long and expensive. And sometimes after trial, the judge would find fault did not exist and keep the parties married.
Now, we just use No Fault, which is a guaranteed divorce. No more trials having to prove the divorce. If there is a trial it is about property, money and children.
Legal Grounds for Divorce
Under New York law, a divorce can be granted when a marriage has been “irretrievably broken” for at least six months. This means that one or both spouses believe that the relationship cannot be repaired. Importantly, only one spouse needs to claim that the marriage is irretrievably broken for the divorce to proceed. This provision is designed to reduce the acrimony and blame. Also, it can help with an uncontested divorce. With reduced acrimony, the chances for a deal increase.
Requirements
To file for a no fault divorce in New York, certain criteria must be met:
- Residency: At least one spouse must have lived in New York for a minimum of two years before filing for divorce. Alternatively, if the couple was married in New York or has lived in New York as a married couple, only one year of residency is required.
- Irretrievable Breakdown: The marriage must have been irretrievably broken for at least six months. This declaration can be made by either spouse.
- Settlement of Issues: Before finalization, all issues related to the division of property, spousal support, child custody, and child support must be resolved. This can be achieved either through mutual agreement or court intervention.
The Process in New York
The process for obtaining a no fault divorce in New York involves several steps:
- Preparation and Filing of Papers: The process begins with the preparation and filing of a Summons with Notice or a Summons and Verified Complaint with the County Clerkâs Office. This document outlines the grounds for divorce and any relief being sought, such as property division or child support. The court filing fee is $210 plus credit card processing charge. (Here’s a list of the court fees)
- Serving the Papers: The filing spouse (plaintiff) must serve the divorce papers to the other spouse (defendant). This must be done within 120 days of filing and can be carried out by a third party or a professional process server. Process servers are the preferred method, but they cost money.
- Response from the Defendant: The defendant has 20 days (if served within New York) or 30 days (if served outside New York) to respond. The response can be an answer, which may include any counterclaims, or a notice of appearance if the defendant agrees to the divorce but wants to be heard on other issues.
- Settlement Agreement: If both parties agree on all terms of the divorce, they can draft a Settlement Agreement. This document outlines the division of assets, child custody arrangements, and any support obligations. It must be notarized and submitted to the court. Most divorces end in settlement. Which is why we always recommend seeing an uncontested divorce. People can spend thousands of dollars to end up where they would have been had they had an uncontested divorce.
- Judgment of Divorce: If all paperwork is in order and there are no unresolved issues, the judge will sign a Judgment of Divorce. This finalizes the divorce, and both parties receive a copy of the judgment.
Advantages of No Fault Divorce
No fault divorce offers several advantages over fault-based divorce:
- Reduced Conflict: By removing the need to prove fault, it reduces the blame and hostility that often accompany divorce proceedings. This can lead to a more amicable resolution and better post-divorce relationships, especially important when children are involved. And reduced conflict means you pay your lawyer less money. Always a plus.
- Simplified Process: No-fault divorce simplifies the legal process, making it quicker and less expensive. Without the need to gather evidence and present a case for fault, the proceedings are more straightforward.
- Privacy: No-fault divorce allows couples to keep the details of their marital issues private. In contrast, fault-based divorces often involve airing personal grievances in court.
- Focus on Resolution: With no-fault divorce, the emphasis is on resolving practical issues such as asset division and child custody, rather than dwelling on past wrongs. This forward-looking approach can lead to more constructive outcomes.
Common Misconceptions about No-Fault Divorce
Despite its advantages, no-fault divorce is sometimes misunderstood. Here are some common misconceptions:
- No-Fault Means No Consequences: Some believe that no-fault divorce allows spouses to escape the consequences of their actions. However, issues such as financial misconduct can still be considered when determining asset division or spousal support.
- No-Fault Divorce is Always Easy: While no-fault divorce simplifies the legal grounds, it does not eliminate the challenges of negotiating a settlement. Disputes over property, custody, and support can still be complex and contentious.
- No-Fault Divorce is Quick: The length of the divorce process depends on the complexity of the issues and the level of cooperation between the spouses. Even with no-fault grounds, reaching a final agreement can take time.
Conclusion
The introduction of no-fault divorce in New York has made it easier for couples to end their marriages without the need for blame and conflict. By focusing on practical resolutions and minimizing acrimony, no-fault divorce offers a more humane and efficient path to ending a marriage. However, it is essential to understand the legal requirements and process involved to navigate this journey successfully.
For those considering divorce call Port and Sava for a free 15 Minute Telephone Consultation