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WHY CAN'T I GET AN UNCONTESTED DIVORCE?
April 29, 2019
People often ask me whether they can get an uncontested divorce. That is a very complex question because while both parties may want to get a divorce, they do not realize that securing a divorce means that you must have both parties settle all ancillary issues in your divorce judgment. The grounds for divorce are probably the easiest part to consent to but is not the last part. There are many aspects to a marriage that must be resolved before a court can issue a judgment of divorce. If you have children, you must consent to all terms of legal custody and joint custody and custodial taxes to the children. This can become very complex when parties live in two different states are two different countries. It is just as complex if parties live in the same neighborhood because you must come up with a detailed schedule as to which parable have custodial axes on what days and on what holidays. As for child support, where there are children you must provide for a child support order in your divorce Judgment. That is also complicated because there is a uniform child support standard act guideline that you must follow unless there are reasons to deviate therefrom. And there are a lot of variables to consider before setting child support such as the income of the respective parties, the needs of the children and the ability to pay. And then there is spousal support. In New York since 2016, we now have a standard spousal support guideline that the courts often follow, and it sets a chart for the parties to understand whether they need to pay spousal support and how much and for how long. There are also issues involving property that is acquired during the marriage. This becomes difficult if one party or the other owns property prior to the marriage but contributes to the down payment on principal during the marriage. Furthermore, several of my clients don’t understand that pension rights and for one K plans are marital property if a portion of that plan is earned or accrued during the marriage.
These are only a few of the problems that must be addressed in detail in a signed agreement and knowledge to be for notary in a formal manner which is required for the filing of a deed. Indeed, even if the parties have managed to come to terms, the execution of the agreement is also a complex and should involve a lawyer reviewing your agreement to make sure it is binding.
There’s also the issue of counsel. Often if there is an attorney on the other side of the case there will always be issues to resolve because the parties may not have discussed points of law that must be in the agreement.
I am often heard to say that if there is an attorney on the other side it is not an uncontested divorce. That is only partially true! If the Attorney on the other side is reasonable and experienced and not out to change the deal of the parties, then you can have an uncontested divorce. But in my experience if there’s an attorney on one side of the case there will always be additional work other than filing closing documents and getting an uncontested divorce.
Without solving the above problems in a formal document, a court cannot get you a judgment of divorce. In fact, it would be error to do so.
As you can see an uncontested divorce is not as easy as you might think. That is why it is important to retain an experienced New York Divorce Lawyer familiar with divorce and child custody matters.
By Lisa Beth Older
Your Manhattan Divorce Lawyer