What is a contested divorce?
A contested divorce is when your spouse disagrees with anything in the case, including the divorce itself, the property division, child custody, or financial support. A contested divorce is more complicated than an uncontested divorce. It is always best to have an attorney assist you with a contested divorce.
What is an uncontested divorce?
An uncontested divorce is one where you do not expect your spouse to disagree with any aspect of the divorce or when your spouse does not respond to the court papers served on him/her. In cases of uncontested divorce, you may represent yourself, but a lawyer might still be helpful, especially if your spouse has one.
To get an uncontested divorce, you generally have to file documents with the court. You and your spouse generally do not have to make an appearance in court.
How much does a divorce cost?
The NY Courts website lists a schedule of fees for initial divorce filings in on page 5 of their divorce packet. For an uncontested divorce, the inital court filings may represent the majority of the cost. However, for contested divorces, where motions are commonly filed, experts may be ordered to do evaluations, and a lawyer is usually required, the costs can increase greatly.
If you cannot afford the filing fees, you may file an application to proceed as a poor person. Here, for example, is an affidavit that would be filed when asking to have the fees waived (in other words, to “proceed as a poor person.”) The clerk’s office can tell you exactly what forms to file. If you qualify, you will not have to pay the fees.
Attorneys usually charge an hourly rate, ranging from $175 to $450 or possibly even more, depending on experience. They usually require an advance retainer, which is an initial deposit against which you are billed. You might be able to get an attorney for no cost through our NY Finding a Lawyer page or, if you are low-income, you may be able to get an attorney appointed for you by the court to handle custody and visitation matters.1
However, if you cannot afford to pay for an attorney, there is a law that may help if your spouse earns/has more money than you do. The law says that the judge can order the spouse who has more money to pay the lower-income spouse’s attorney’s fees and the fees and expenses of experts (such as a forensic psychologist) if this is necessary for you to be adequately represented in the divorce. The judge will assume that the richer spouse should pay the poorer spouse’s attorney fees although the richer spouse can try to change the judge’s mind and offer evidence to show why this should not be done. The money would be paid during the divorce (not at the end) to your attorney directly.2 This law also applies to a court case you may have to later bring to enforce any part of the divorce or custody order that the other spouse is violating.3
1 NY Judiciary Law § 35(8)
2 NY Dom. Rel. Law § 237(a)
3 NY Dom. Rel. Law § 237(b)
If I think the divorce will be uncontested, what are the steps I need to follow to begin the divorce?
Step 1: Grounds
You must first have grounds (a legally acceptable reason) to ask for a divorce. For more information, please review the section: What are the grounds for divorce?
If you are filing for a divorce after a separation agreement, you must both have a properly written agreement that has to have very specific legal language in it to be valid. We strongly suggest that you have a lawyer draw up the agreement so that it meets the legal requirements. You both must sign the agreement in front of a notary and at some point, file it in the proper court in the county where you live. Then, you must live apart, according to the terms of your agreement, for at least one year before filing for divorce.
If you are filing for a fault-based divorce or a “no-fault” divorce action, then you do not need to write a separation agreement. Again, we suggest having an attorney assist you with filing for your divorce.
Step 2: Fill out and file the proper forms and pay the fee
For an uncontested divorce, you will need the Uniform Uncontested Divorce Packet. There are links to these forms on our Download Court Forms page. There are also more instructions on the NY State Courts website. Many of the forms can be very complicated, however, and we suggest having the help of an attorney. If you are filling out forms on your own, you can ask the court to keep your address confidential, if you have been abused by your spouse. Be sure to ask the clerk for help with this and do not put your address on any of these forms. If you expect or know that the divorce is going to be contested, an attorney is especially important to make sure that your legal rights are protected.
You will also have to pay certain fees to file for the divorce. If you cannot afford it, you can ask the clerk for an application to proceed as a poor person. If you qualify, you may not have to pay the fees.
Step 3: Service of Process
Your spouse must be personally served with a copy of the all necessary papers - be sure to clarify with the clerk what exactly needs to be served upon your spouse. This means that a person other than you, who is a New York resident, age 18 or older, must personally give your spouse the papers. The server may be a friend, family member, or professional process server. Summons may be served Mondays through Saturdays, but there is no service of process on Sundays.
If your spouse lives in another state, you will need to follow the rules of that state. Call the local sheriff to find out how to have the papers served in that state.
Step 4: In an uncontested divorce, possibly receive the Affidavit of Defendant (Form UD-7)
If you file for divorce and your spouse agrees to the divorce, s/he will need to sign the Affidavit of Defendant (Form UD-7) and send it back to you. S/he has 40 days to do this. If it is not done within 40 days, you can file for the divorce based on his/her default.
- If your spouse will not complete and return the Affidavit of Defendant, then whoever served him/her with the papers must prepare an Affidavit of Service (Form UD-3), proving that your spouse received copies of the divorce paperwork. If you were married in a religious ceremony, then you must also fill out a copy of the Sworn Statement of Removal of Barriers to Remarriage (Form UD-4) and someone other than you, over the age of 18, must send a copy of it to your spouse either by personal service along with the Summons With Notice or the Summons and Verified Complaint, or by mail. Check with the clerk to see what other forms, if any, also need to be mailed to your spouse.
- If your spouse files a Notice of Appearance disagreeing with anything in the papers, then this is no longer an uncontested divorce. You may want to consult an attorney immediately if this happens.
Step 5: Place your divorce case on the court calendar, possibly appear in court multiple times, and get the judgment for divorce
The forms that you need to file to get your divorce on the court’s calendar and in front of a judge will be different based on if your spouse signed the Affidavit of Defendant (Form UD-7) or a notice of appearance. There are multiple forms that need to be filed and again, we suggest having the help of any attorney to make sure everything is done properly. The time it takes to get the judgment of divorce will be much different if you are filing an uncontested or contested divorce – for contested divorces, there will multiple court appearances, hearings, and possibly a trial – this could all take many months or even years. For uncontested divorces, you can be granted a judgment of divorce without appearing in court but there could still be a significant wait depending on how busy the court’s calendar is.
Note: If you are served with divorce papers by your spouse but you do not agree with the terms that your spouse is asking for in the divorce, you can contest the divorce by filing a Notice of Appearance in court within 20 days of being served with the divorce papers or by hiring a lawyer to do so for you. The Notice of Appearance tells the court that you plan to participate in the divorce proceedings.1
1 Much of this information was adapted from the NY Courts website divorce packet. Please read the packet for additional information.
You can find more information about service of process in our Preparing for Court – By Yourself section, in the question called What is service of process and how do I accomplish it?
What should I do if my spouse files for divorce against me?
If you are served with divorce papers but do not agree with any of the terms that your spouse is asking for in the divorce, you have a limited amount of time to file your own papers in response to the divorce petition. If you are served with a “summons with notice,” you can answer (“appear”) in the case by filing and serving upon the other party a notice of appearance and demand for complaint. If you are served with a summons and verified complaint, you may answer (“appear”) in the case by filing and serving a verified answer and counter-claim, in which you can ask for whatever relief you want in the divorce. For specific advice on how to serve a notice of appearance and/or on how to fill out and serve a verified answer and counterclaim, especially if you are not sure which one to file, please consult with a lawyer. There are many steps to proper service, including knowing how to serve the papers to the opposing party, how to fill out and file an affidavit of service and what papers need to be filed with the court. It is generally best to get legal advice to be sure that everything is done properly.
As the divorce progresses, there will be a series of court dates where you will have to appear in court in order to deal with the issues within the divorce. We strongly recommend getting a lawyer to represent you since contested divorces can be quite complicated and complex. Go to our NY Finding a Lawyer page for legal referrals.