Despite the prevalence of divorce in our society, many individuals and couples considering it are unaware of what the process actually entails. To help understand the process, including many new changes in New York family law, Wisselman, Harounian & Associates, P.C. created this guide outlining the various steps involved.
Divorce Process – Two Main Types
The actual divorce process varies greatly depending on the unique circumstances surrounding the divorce. Overall, there are two types of divorce: contested and uncontested.
I. Uncontested Divorce
An uncontested divorce is a simplified process that generally stays out of court. It requires the full cooperation of both parties, and the filing of documents with the court by a legal professional.
- First, uncontested divorces require both spouses to want to get divorced, and are ready to communicate and cooperate with one another to make it happen.
- Second, uncontested divorces require both spouses to agree on what will happen to child custody, support, tax issues, the marital residence and division of assets. The parties have reviewed the divorce paperwork and are “on the same page” regarding all of the issues. If the couple disagrees on any of these topics: the fair split of assets, the child custody arrangement, etc., or reach an impasse, then the divorce is no longer uncontested.
As both spouses are fully cooperating in an uncontested divorce, the process can be relatively amicable, simple and straightforward. Rather than deal with the court process (which can take years), the couple can use separate family law attorneys (or a neutral attorney mediator) to prepare the required paperwork and complete the process in an amicable fashion. Since there are no court procedures, an uncontested divorce saves significant time and money compared to a contested divorce.
There are a few approaches to Uncontested Divorce:
A. Divorce Mediation
Divorce mediation involves a neutral third party called a “mediator” (typically a trusted family law attorney) who helps the couple plan through their divorce to reach mutually agreeable settlements on the debated issues. Because divorce mediation is most appropriate for couples who are in agreement on most of the issues, and there is no need to go to Court, it is considerably less expensive and faster than going through the litigation process.
It is important to note decisions made in divorce mediation are not concrete until the divorce agreement is finalized. Therefore, if your spouse is prone to changing their mind about things, divorce mediation may not work well. Additionally, if one partner is abusive or manipulative, or is not up front about income and assets, mediation may not be the right choice.
B. Negotiated and Collaborative Settlement Process
Collaborative practice and negotiated settlements are somewhat similar to divorce mediation, since the process stays out of court, with a few differences in approach.
- First, there are two lawyers, each representing one of the spouses. Therefore, instead of having one attorney work with both parties, as in mediation, each party has their own separate family law attorney to advise them and guide them through the process.
- The attorneys utilize neutral experts (if necessary) to help the parties reach a consensus regarding custody, support and valuation / division of assets.
- The emphasis is on voluntary sharing of information, and cooperation among the attorneys, parties and experts. (In Collaborative Law, the parties and attorneys sign a contract which requires them to avoid court proceedings no matter what.)
- Out of court negotiation can take many months (and even years), depending on the cooperation of the parties and their attorneys.
At Wisselman, Harounian & Associates, we encourage a cooperative good faith process for negotiated settlements out of court. We utilize experts when necessary and make every effort to avoid court proceedings, with the goal of an out of court settlement. However, if collaboration and mediation are impossible due to the couple’s different views, or if assets are hidden, or there is a breakdown in communication, then we can proceed with litigation and go to court. In some cases, it is imperative to seek court intervention.
II. Contested Divorce
A contested divorce occurs when one of the spouses refuses to cooperate with the divorce, or if the couple disagrees on particular divorce-related issues or terms. A contested divorce has a variety of steps, but couples can work with a family law attorney to work through the divorce process one step at a time. After papers are served, and the couple determines they aren’t on the same page concerning their divorce, there are a few options they can use to work through their disputes.
Supreme Court Jurisdiction
Supreme Court judges hear the proceedings of New York divorces in county Supreme Courts. New York Family Courts do not handle divorces, but they can assist individuals with custody, child support, paternity and post-divorce scenarios. In some cases, it is necessary to seek court intervention on an emergency basis, to protect a child, obtain an order of support, or get restraining orders with regard to assets.
In court, the judge will ultimately decide custody and how the assets are split between the two parties. These court proceedings are costly, as it takes time to establish the necessary evidence to warrant a judge’s decision at trial. When in divorce court, couples can expect to wait months (or even years) for the finalization of their divorce. With that being said, the exact length of a conventional divorce is hard to determine.
Experienced Representation Is a Must
Regardless of the divorce process (or a mix of processes) that you use, you will want experienced family law representation on your side. We offer a free consultation so that you can obtain information on which type of strategy and process is the best fit for your case. We strongly believe that whenever possible, settlement opportunities should be explored. But if an out of court settlement is not possible, our firm will be prepared to zealously advocate for your rights to custody, support and asset distribution.
Ready to start your divorce? Contact (516) 406-8500 now for a free consultation!