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:
By: Sandler Francois
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.