In New York, for the representative year of 2018, there were a total of 70,851 divorces filed. Of those, 52% were contested and 48% were uncontested. It is estimated that over 60% of uncontested divorces are filed by lawyers, around 20 % are filed by non-lawyer paralegals, and less than 10% are filed by one of the spouses.
What Is An Uncontested Divorce?
An uncontested divorce is a divorce where the spouses have figured out all the possible issues that need to be resolved. These issues often include many of the following:
- Division of property such as homes, cars, bank accounts, pensions, etc.
- Payment of alimony (called maintenance in New York ) from one spouse to the other.
- If there are children, who gets custody, and what kind of visitation does the other parent get?
- If there are children, how much child support will be paid?
- Who gets to live in the marital residence?
- If there are debts, who is responsible for paying them?
If the husband and wife have figured out all of these issues, they can get divorced just by signing and filing the appropriate papers. 99% of the time, no court appearance is required.
I am an attorney who has successfully done over 100 uncontested divorces in New York State. Hence, I have seen most of the issues that can come up. This article is intended as a general guide about how you can do your own uncontested divorce. However, it may or may not be in your best interest to do an uncontested divorce instead of a contested divorce, and this article cannot be considered legal advice.
Most of my uncontested divorce cases dealt with relatively young couples who did not have a lot of assets or accumulated a lot of money, and were primarily concerned with moving forward with their lives as quickly and painlessly as possible. The great majority did not have children.
Why Choose An Uncontested Divorce?
Most people choose an uncontested divorce in order to save money on legal fees, to avoid aggravation and delay, and , especially when they have children, to avoid bad feelings and animosity which can negatively affect their lives and/ or their children’s lives.
Contested divorces tend to be very expensive, can take a long time, and can be extremely expensive, if not traumatic to go through. On the other hand, one or both of the spouses may be concerned that their financial interests and futures are at stake, and they either cannot agree about major issues, or they do not trust the representations of their spouse about assets and income.
A contested divorce allows both parties to conduct extensive discovery of the other spouse’s income, assets, and debts. The attorneys are also able to subpoena information such as tax returns, bank account and brokerage statements, and credit card statements. Witnesses can be called and cross-examined.
This process, while certainly not perfect, can give each spouse a pretty good idea of the assets , debts, income, and spending of the other spouse.
Why On Earth Would You Want To Do It Yourself?
Most people hire lawyers to do the paperwork for their uncontested divorce. Some are fooled into using paralegals. While you do not necessarily have to be an attorney in order to know how to fill out divorce papers, paralegals are unlicensed and practically unregulated. Anyone can call himself or herself a paralegal and some “paralegals” have just taken people’s money and disappeared,
While lawyers, especially in New York, are typically very expensive, there are a number of attorneys who use a combination of paralegals and software to prepare the papers, with them spending a few minutes of their time to check the work. Many of these lawyers do a good job for a fair price. They generally advertise on the web.
If you just call a lawyer at random, they may try to charge you as much as $2500.00 for a very simple uncontested divorce with no children, while the lawyers who advertise online may charge between $500.00 to $700.00 (not counting court costs).
The Supreme Court courthouses, at least in NYC, do have divorce kits (forms) that they provide free of charge and some assistance from clerks, but I have seen pro se litigants who have taken over a year to get their divorce papers through the system.
I would not advise anyone to try to do their own uncontested divorce, even if there are no children or assets, unless they purchase or are able to get the use of a program such as Drafting Libraries.
First Things First
In order to get divorced in New York State, you have to satisfy the residency requirements. The residency requirements will be satisfied if either of you have resided in the state for 2 years prior to the filing date of the divorce, and if either of you has resided in the state for 1 year prior to the filing date and you were either married in New York , or lived together in the state as husband and wife for over 1 year prior to the fiing date.
You will have to put in grounds for the divorce. For uncontested divorces the only grounds that make sense s the no-fault grounds of irreconcilable differences. If you put in cruelty, abandonment , or adultery it is likely that your spouse will refuse to sign all the papers.
Using Software To Avoid Mistakes & Delays
I have used Drafting Libraries for all of my uncontested divorces. This software uses a series of questions, much like Turbotax, to guide you, and it automatically checks the papers to detect any obvious mistakes that would otherwise result in your papers being rejected. Drafting Libraries is also updated to reflect changes in the law and changes in the required forms (except for extremely recent changes that have not yet entered into the software).
Drafting Libraries, or “DL” as it is sometimes called, costs $450.00, while you could probably hire a competent lawyer for two hundred dollars more.If you are really poor, it is possible to get a waiver of the $225.00 court filing fees, which you probably wouldn’t be able to get if you paid for a lawyer, so you might save around $400.00.
If you have a friend or family member who is an attorney and has the software, if you do not want to ask them to do the divorce for you pro bono, they could let you use the software. There may also be other software out there that is cheaper or even free that can do the job, but since I had already bought DL, I never had to look into that.
DIY Divorce With Children?
I dont think so! When you have a minor child (under 21) filing the papers becomes much more complicated. Because I didn’t get that many divorces with children, every time I had one, I had to teach myself all over how to do it, as the forms are very complicated and frequently change. I always charged $1500, although I know that there are some lawyers (who probably have very good paralegals to do the papers, while they only have to double check) who charge significantly less.
I am assuming there are no children and you are using DL or some similar software. There are still a few important tips I am happy to share with you. Once again, these tips are not comprehensive and could not possibly cover all situations and cannot be considered to be legal advice. They are mostly just things I have run into.
File In Manhattan
Under the CPLR you can file in any county so long as you have consent. Lawyers often like to file in the counties where their offices are located, at least before Covid, when everyone had to go to the courthouse to file or send someone to go to the courthouse.
I have found that historically, Manhattan processes divorces the quickest of any NYC borough, and the clerks are the most helpful. In Manhattan you don’t just drop your papers off in a box. Instead, you have to sit down with a clerk who double checks everything. The clerks who screen the divorce papers are very experienced, and if they approve your papers you have a 99% chance that they will go through without a hitch.
In some of the other boroughs, you have to drop the papers off, and many months later you get a notice that there is something wrong and you have to come in to fix it. If you are a pro se litigant who is struggling with the papers, this could happen multiple times and your divorce could take forever to go through.
Make Sure You Have Actually Figured Everything Out
If there is a house involved, you really need an attorney to help you. If you are determined to do it yourself anyway, you have to be sure you have figured everything out. I have gotten people who think it is all figured out. because the parties have agreed that the house will be sold and the proceeds will be split 50/50. What if the parties can’t agree on a price? Which broker will they use and what percentage will they pay the broker?
If either or both spouses have pensions, what do they want to do about that (see discussion below)?
If there are joint bank accounts or joint credit cards, the best thing is to divide the money first and pay off the credit cards before you start the divorce process.
Who gets to keep the family pet?
Decide Whether Or Not You Want To Hire A Process Server
After you have filled out the papers you officially start the process when you buy an index number, and the case gets entered into the Court’s computer. By the way, make sure there are no typos in the names of the parties, you and your spouse. Many other typos do not matter, but if the name is misspelled it may cause a lot of problems down the road.
Once you have purchased an index number you have 180 days to serve your spouse. If you fail to serve your spouse within that time, you will have to buy a new index number. If you are absolutely sure that your spouse is not going to change their mind about the divorce, you can just hand or mail them the papers. The affidavit of the defendant will have to say that they acknowledge service of the papers and waive any objections. DL does this automatically.
If you are not sure about your spouse’s intentions, you need to have him or her served. The best way is to hire a process server, but they generally charge at least $50.00
You can have your spouse served by anyone other than you who is over 18, but that person has to fill out an affidavit of service and I have found that they do it wrong over half of the time.
Watch Out For Pensions
Under the law, spouses have rights to amounts which have accumulated in pension accounts during the marriage. This can, in some cases, be a considerable sum of money. Unless spouses are going to waive their rights to the other spouse’s pension, and the parties wish to divide the money, they will need to execute a document called a “quadro”. . Most divorce lawyers have no idea how to prepare this document, so there are specialty law firms that just do quadros.
Quadros are almost never used in uncontested divorces. The parties could waive rights to a pension outright or could be given something else in return. This would have to be spelled out in the divorce papers.
Also, I have been warned that if a spouse wishes to waive pension rights there has to be specific language in the papers that specifically states that they are waiving all rights under ERISA. This language is not in the DL papers, and once I found out about this, I always added it.
If you have any kind of pension, you should find out how much it is worth before even deciding to do an uncontested divorce, much less an uncontested divorce on your own. I would strongly advise against doing an uncontested divorce on your own if you have money in a pension, unless it is a small amount that you are prepared to lose.
Wrapping Up Your Divorce
Once you have the final judgment of divorce, you have to serve it on your spouse. You are supposed to do this within 30 days from the date of entry, which is on the divorce judgement. You should use a process server for this. You should keep the papers in a safe place, such as a safety deposit box. You may need them many years from now.
place such as a safety deposit box. You may need they many years from now.