In an uncontested case, your spouse is given the divorce documents and your spouse does not oppose the divorce. This can be done in two ways:
By Consent/Agreement: Your spouse signs the forms we prepare called AFFIDAVIT OF DEFENDANT AND STIPULATION OF SETTLEMENT. When your spouse signs the AFFIDAVIT OF DEFENDANT, your spouse is acknowledging receipt of the divorce summons and stating that he or she does not intend to contest the divorce. When your spouse signs the STIPULATION OF SETTLEMENT, you spouse is agreeing and consenting to all aspects of the divorce with you.
By Default: Your spouse will not sign any documents. Your spouse is formally serviced with the divorce summons, and then fails to file a formal response (“Notice of Appearance”) within up to 30 days of being served. There is also a mandatory 40 day additional waiting period for default cases.
Generally speaking, it has been our experience that in cases where there is no marital property to be divided, state-mandated guideline amounts of spousal support and or child support are requested, and no unusual custody or visitation issues are raised, the divorce is usually granted on the documents alone, and no appearances are ordered by the court. If complex property division issues (“equitable distribution”) exist, you have unusual custody and visitation issues, or you seek Temporary Maintenance and Post Divorce Maintenance or child support amounts that deviate from the New York State guidelines, the court may order a hearing (“inquest”) to help it decide how these issues should be resolved, or the court may ask you for additional information before making its decisions.
In cases where ANY assets or debts are involved, and or children UNDER THE AGE OF 21 are involved, you and your spouse must usually sign an agreement called a “Stipulation of Settlement” in order for an uncontested divorce to proceed without the parties possibly having to appear in court. This agreement sets out how you and your spouse have agreed to resolve the issues of equitable distribution of assets and debts, custody, visitation and child support. If the court approves of the agreement the judge will incorporate the terms of the Stipulation of Settlement into the judgment of divorce.