If you and your spouse can’t agree, and your spouse won’t sign all necessary papers, the following problems and issues may arise which can make your divorce more difficult and take more time:
Marital Property: All marital assets and debts (property obtained by either party during
the marriage) must be divided by written agreement (Separation Agreement or Stipulation of Settlement). If you and your spouse cannot agree in writing on how the property is to be divided, the court will either order an inquest (hearing) for you and your spouse to appear in front of the judge and testify regarding the marital property, or the court will consider the case “contested” and the judge will not sign a judgment of divorce until the property issue has been resolved, either by written settlement agreement or after trial.
Child Support: If you and your spouse are unable to agree in writing on the issue of child support, the court will generally order child support to be paid pursuant to the CSSA guidelines (see “How Do We Determine the Amount of Child Support? below) via an Income Deduction Order (i.e. garnished from the payer’s paycheck), payable through the NYS Support Collection Unit (“SCU”.) If the court does not have sufficient information to determine the proper CSSA guidelines amount, an inquest will be ordered and the parties will have to appear in court to produce documents and testify on the issue of their income and child support obligations.
Delays: If your spouse refuses to acknowledge service of the summons and consent to the divorce by signing the “Defendant’s Affidavit,” then in-hand personal service is required. This causes the additional delay and expense of employing a process server, as well as a mandatory 40-day “waiting period” before the court will process your uncontested divorce papers. This can lead to delays of several weeks, or even months if your spouse is difficult to serve.
Failure of No-Fault Divorce: No judgment of divorce can be granted under a no-fault divorce unless and until ALL the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts’ fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce.
Temporary Maintenance & Post Divorce Maintenance: If you and your spouse are unable to agree in writing on the issues of Temporary Maintenance and Post Divorce Maintenance and your case becomes contested, the court can order Temporary Maintenance to be paid.
Calculation (1): 30% of the payor’s income minus 20% of the payee’s income,
Calculation (2): 40% of the combined income of the two spouses. The payee’s income is then subtracted from this figure.
The sum of this calculation is the Presumptive award. The court must select the lesser of these two figures as the temporary maintenance guideline amount.
The court must order the presumptive award of temporary maintenance, unless the court finds that the presumptive award is unjust or inappropriate.
See Domestic Relations Law § 236 [B][5-a][e].
If the court does not have sufficient information to determine the proper Maintenance guidelines amount, an inquest may be ordered and the parties may have to appear in court to produce documents and testify on the issue of their income and child support obligations.
Custody & Visitation: If your spouse won’t sign our documents, the court will usually order ‘reasonable visitation’ to the non-custodial parent. We’ve seen people try to unsuccessfully get the court to impose a visitation schedule in cases where the other party wouldn’t sign. The judge will usually direct that the non-custodial party shall receive ‘reasonable visitation’. If you don’t want that to happen, you need to consult with an attorney to help you finish your divorce case.
If you are the victim of domestic violence or child abuse has happened, Premier Paralegal recommends you consult with an attorney prior to using our services. Also, Premier Paralegal recommends you take your issues to Family Court in your County to obtain custody, visitation, and child support orders prior to utilizing our services. Once you have orders from the Family Court, Premier Paralegal can help you incorporate those orders into your final divorce judgment.