There are two types of divorces in New York: uncontested divorces and contested divorces. The differences between them tend to create a fair amount of confusion among people going through the divorce process, and this article will attempt to bring some clarity to the subject.
Simply agreeing to get divorced does not mean that you have an uncontested divorce.
One of the key differences between uncontested and contested divorces has to do with price. Uncontested and contested divorces require very different levels of intervention from the court and, correspondingly, very different levels of attorney involvement and fees. Many law offices will do an uncontested divorce for you at a flat rate, while to hire the same office for a contested divorce, you’d have to plunk down a retainer many multiples higher than the uncontested flat rate, and replenish that retainer as needed.
Another important distinction between these two types of divorces is in how much time they require of you, the litigant. If you go the uncontested route, you never have to appear in person in court. You simply submit a packet of documents to the court, which you can draft yourself following these directions or pay an attorney to draft for you. You then wait for your submission to be processed by the court, and you obtain your Judgment of Divorce from the court when it’s ready. In short, minimal time is required of you to go through an uncontested divorce process.
In a contested divorce, by contrast, you’ll have to appear in court many times, usually for an entire morning or afternoon, and always in the middle of a weekday/workday. The courts have a strict schedule imposed on them for contested divorces that they, in turn, need to keep you to. You’ll have regularly scheduled appearances in which your attorneys report to the court on your progress on two fronts, in settling the case and in preparing the case for trial. You’ll come in person to court, first, for a preliminary conference, to give the court the opportunity to take stock of the issues in your case and where they stand. At that conference, you’ll set up a discovery schedule for exchanging all relevant documentation and financial information in your case. You’ll then come back regularly for compliance conferences, to allow the court to monitor your progress and nudge you toward settlement. You’ll also be able to file and will have to respond to motions for different kinds of temporary relief, e.g., temporary custody, visitation, child support, spousal maintenance, occupancy of the home, etc. These temporary motions are common because contested divorces tend to take a long time to resolve, and the majority of litigants need the court to intervene on some issue or another before their case is concluded.
If uncontested divorces are so much less time-consuming and expensive than contested divorces, why wouldn’t everyone choose the uncontested divorce route? Because not everyone qualifies for it. If you take one thing away from this post, take this: simply agreeing to get divorced does not mean that you have an uncontested divorce.
In order to have a truly uncontested divorce, you need to:
1. Agree to get divorced.
2. Know all the legally-relevant issues in your case and understand what NY law says about them. (You don’t have to follow NY law, but you need to understand what it says.)
3. Have agreed in detail with your ex on exactly how you’ll resolve each of those legally-relevant issues.
4. Be able to describe, in detail and in writing, what you’ve agreed to, either in a written contract (preferable) or in the uncontested divorce papers themselves.
That’s a tall order, and most people aren’t there at the outset of their divorce process. The majority of couples at the outset of a divorce case have not resolved much beyond the fact that they’re getting divorced. For these couples, starting out with an uncontested divorce would be putting the cart before the horse.
Don’t despair if that’s the position you’re in when you’re reading this. First of all, you’re in good company. The majority of cases start exactly where you are. What’s more, the majority of cases will resolve in settlement and be filed as uncontested divorces. (Over 90% of contested cases settle.)
Second, there are some process options that are helpful to be aware of. One is that you can work with attorneys or a mediator outside the court system to address and resolve all the issues in your case, and to file for an uncontested divorce only once you’ve identified and worked through those issues.
Another option is to initiate your divorce case by purchasing an index number, but not to take further action in court while you negotiate a resolution of all issues outside the court system, with the help of attorneys and/or a mediator. When you start your case (i.e., when you purchase an index number), you don’t have to indicate whether your case is contested or uncontested. If you don’t request court intervention at the outset, you can take the time you need to negotiate a settlement, and then only ask for court intervention when you’re ready to process your uncontested papers.
There are significant legal consequences to purchasing an index number—and to not purchasing one—which should be addressed in an individual consultation with a divorce attorney. Ask about the pros and cons of purchasing an index number and filing a Summons before you’ve worked through the issues with your spouse. Also ask about ways outside the court (e.g., through interim agreements) to extend some of the benefits of purchasing an index number without actually purchasing one.
In summary, the essential difference between an uncontested and contested divorce is in whether or not you need the court’s help to resolve any outstanding issues in your case. Each route—contested and uncontested—has its own series of steps you must comply with and very different demands on you, the litigant, in terms of cost and time involvement. If you’re not quite ready for an uncontested divorce but would ultimately like to be, try one of the alternatives mentioned above before going full speed ahead with a contested case. With some thoughtful planning at the outset of your case, you may be able to save yourself unnecessary cost and hassle in the long-term.