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Divorce

What is the difference between a Contested and an Uncontested Divorce?

What is a divorce?

What is an annulment?

What if I cannot locate my spouse?

How do I get certified copies of my divorce papers?





Q: What is the difference between a Contested and an Uncontested Divorce?

 UNCONTESTED: Your divorce will be uncontested if both you and your spouse:

• Want to get a divorce
• Agree about what will happen with your children, your finances, your property after the divorce

CONTESTED: Your divorce will be contested if either you or your spouse:

• Do not want to get a divorce
• Disagree about the grounds (legal reasons) for the divorce
• Disagree about what will happen with your children, your finances, your property after the divorce

Because the judge will require detailed information to decide the issues you disagree about, your contested divorce will require you and your spouse to go to the Supreme Court numerous times.


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Q: What is a divorce?

Divorce is the final, legal ending of a marriage by court order. If you have a divorce case in court, you may hear lawyers and court staff call it a matrimonial action. The person who starts the divorce is called the plaintiff, and the other spouse is called the defendant.

 


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Q: What is an annulment?

Unlike a divorce that ends a valid marriage, an annulment establishes that the marriage is not legally valid, and the grounds for annulment are different from a divorce. To get an annulment, you will need to prove ONE of the following:

• Bigamy: one of the parties was still married to someone else at the time of the second marriage.

• Either spouse was incurably unable to have sexual intercourse at the time of the marriage.

• After marriage, either spouse becomes incurably insane for five (5) years or more. The Court may require the sane spouse to support the Marriage between persons under 18, if the spouse under 18 wants the annulment. The annulment will not be granted if the person under 18 freely cohabited (had sexual relations) with the other spouse after turning 18.

• Spouse is unable to understand the nature, effect and consequences of marriage because of mental incapacity.

• Spouse agreed to marry as a result of force or duress by the other.

• Fraud (most common ground): the consent to marry was obtained by fraud that would have deceived an ordinarily prudent person and was material to obtaining the other party's consent. The fraud must go to the essence of the marriage contract. Concealment of a material fact may constitute fraud. Sexual intercourse evidencing forgiveness is an absolute defense.
 


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Q: What if I cannot locate my spouse?

New York state law requires that the defendant in a divorce action be personally served with the Summons with Notice or Summons and Verified Complaint. To have your spouse served in any other way, you must get permission from the court.


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Q: How do I get certified copies of my divorce papers?

Copies of divorce judgments or other written orders in divorce cases can be obtained from the County Clerk, however, there is a fee for a "certified" copy. Copies of documents (other than the Judgment of Divorce itself) can only be obtained by one of the parties or an attorney who is representing one of the parties. Divorce records are not open to public inspection.

If you know you were divorced in New York some time ago, but cannot remember in which county, contact the County Clerk of the county where you were living at the time of the divorce, or try the County Clerks of neighboring counties. If you are unsuccessful, you can also try getting a divorce certificate from the New York State Department of Health, however, the Department of Health charges a fee for this service.
 


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The Law Office of Renee J. Tello, PLLC serves clients throughout the New York City metropolitan area including Manhattan, Queens, Brooklyn, Bronx, Staten Island and Westchester.



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