How do I get an uncontested divorce?

An uncontested divorce is where your spouse agrees to the divorce and all the "terms." The terms may include how you will divide the property, spousal support, and taking care of the children.

To file for divorce in New York State you must:

• Meet the residency requirement. These are rules about living in New York.
• Have a "ground," or legal reason, for the divorce. Examples: the marriage is broken, you have a legal separation, or there was cheating, cruelty, or abandonment.

Keep in mind the following:

• If you have been legally separated with a separation agreement for at least 6 months, and you have no children under the age of 21, you can use the online DIY Uncontested Divorce Program to make your papers.
• If you have children under 21, you can use the paper Uncontested Divorce Packet.
• In some courts, you can file the papers over the internet using NYSCEF, the New York State Courts Electronic Filing system. Check the e-filing County List to see if this is available for your court.
• Many of the forms are complicated. A lawyer is helpful if you have questions.

If you want to stay out of court, try divorce mediation or collaborative law. It can be cheaper and less stressful. These alternatives may work for you if:

• you have no parenting or economic issues to work out with your spouse, and
• there is no domestic violence or abuse.

Visit NYCourts.gov for more information.

Getting an uncontested divorce in 5 steps

The steps to an uncontested divorce are:

1. Filing papers at the court
2. Serving the Defendant (your spouse)
3. Defendant’s Response
4. Calendaring (filing more papers and getting a court date)
5. Judgment

Step 1: Filing

A divorce case starts with filing divorce papers at court:

1. Go to the County Clerk's Office for the forms or get online to file electronically. The clerk can help you get the right forms for divorce.
2. Fill in the form called a "Summons With Notice" or "Summons and Complaint."
   • As the person who is filing, you are the Plaintiff. Your spouse (who you want to divorce) is the Defendant.
   • On the form, choose the grounds for divorce. Many people choose "irretrievable breakdown" so the court can rule on the issues to be resolved and not the reasons for the end of the marriage. "Irretrievable" means it can't be fixed.
3. If you have a good Settlement Agreement, file it with the divorce forms. A Settlement Agreement includes how you will divide the property, spousal and child support, and other important decisions.
   • A settlement agreement helps you avoid trips to court and have a faster, less expensive divorce. But sometimes you find out you or your spouse don't fully agree with the Settlement Agreement or it's missing important parts.
   • Once a divorce is final, the agreement is a contract you must follow - even if you change your mind. It's helpful to talk to a lawyer about a settlement agreement.
4. Pay the $210 filing fee to the court with your papers. The court assigns an "index number" to identify your divorce case. If you cannot afford the filing fee, you apply for a Fee Waiver. Ask the clerk for more information.
   • If you are at the court to file, ask the clerk about serving the papers on your spouse. Find out if you need to use an "Affidavit of Service" or the new "Affirmation of Truth" form to prove your spouse was served the right way.
5. After you file the divorce papers at the court, you need to arrange service of the papers to your spouse. You cannot deliver the papers yourself.
   • (If you don't know where your spouse is, go to the Supreme Court Clerk's Office for information and help with "alternative service.")

Move onto Step 2: Service.

Step 2: Serving the defendant (your spouse)

Someone else has to deliver the divorce papers in-person to your spouse (the "Defendant"):

This is called service. It is delivering the "Summons With Notice" or the "Summons and Complaint" to the Defendant so that your spouse knows about the divorce.

If you don't know where your spouse is, ask the Supreme Court Clerk's Office for other ways to serve the papers.

A few important notes:

• You have 120 days to serve the Defendant, starting the day you filed the "Summons With Notice" or "Summons and Complaint" with the County Clerk.
• You cannot serve the Defendant yourself. You must ask someone who is over 18 years old to do this for you.
• The person who serves the Defendant fills out an "Affidavit of Service." This proves the papers were delivered the right way. (Note that the court might allow the new "Affirmation of Truth" to prove the papers were served correctly. An "Affirmation of Truth" does not require a notary public to witness the delivery person's signature).

Step 3: The defendant’s response

The defendant (your spouse) has three options after they are served the divorce papers:

The defendant signs the "Affidavit of Defendant."

In this form, the defendant agrees to the divorce and does not argue with the "Summons With Notice" or "Summons and Complaint." Go to Step 4: Calendaring.

The defendant does not respond.

If the defendant does not respond within 40 days, they have "defaulted." This means that the defendant has taken no action and that the court can move forward with the divorce. Go to Step 4: Calendaring.

The defendant "Answers."

The defendant can contest (oppose) the divorce. They file an "Answer" with the Supreme Court and serve you the Answer too. This means your divorce is not uncontested and you should get legal help for a contested divorce. Find free or low-cost legal help using LawHelpNY’s directory.

Step 4: Calendaring

To get your case on the court's schedule, you must file more forms:

• The Affidavit of Service (proof your spouse got the divorce papers)
• The Affidavit of the Defendant, if they signed it
• The Certificate of Dissolution of Marriage
• A Note of Issue
• Request for Judicial Intervention

Some forms depend on your situation and the Defendant's Affidavit.

If you have young children, you may have to file the following:

• Child Support Worksheet,
• Support Collection Unit form
• Qualified Medical Child Support Order
• Annual Income Worksheet
• Divorce and Child Support Summary Form

If you need spousal support, you will need to file the following:

• Maintenance Guidelines Worksheet
• Annual Income Worksheet

Depending on the county, file these papers at the County Clerk's Office or the Supreme Court Clerk's Office. The filing fee is $125.

What happens next depends on what the defendant (your spouse) does:

If the defendant signed the "Affidavit of Defendant":

You can file the remaining papers right away.

If the defendant defaulted:

Wait 40 days from the date the defendant was served, then file the rest of the papers.

If you need help with the forms, ask the court clerk or a lawyer. You can use the online DIY Uncontested Divorce Program to finish the forms if:

• you have been separated for at least 6 months,
• you have no children under 21, and
• the grounds for the divorce was "irretrievable breakdown in relationship."

Step 5: The judgment

The court may require a hearing if you are asking for maintenance, custody, visitation, or distribution of property, even if you have an agreement:

If the court schedules a hearing, it will send you and your spouse a notice to appear. You must appear at this hearing.

At the hearing, if the Judge approves the divorce, they sign a "Judgment of Divorce."

Once you have the judgment:

• Ask the Court if you have to file the judgment with the County Clerk's Office.
• Serve the Defendant a copy of the signed judgment and complete another "Affidavit of Service" (or "Affirmation of Truth"). This service should still be done by another person and can be mailed. Keep the proof of service to give to the court.

After this, your divorce is legal and final.