A divorce may be settled… yet fighting in court, or litigation, may continue if a former spouse wants reconsideration of the divorce judgment. Three types of post-divorce litigation are appealing a divorce judgment, appealing the marital settlement agreement, and modifying the divorce decree.

Appealing a divorce judgment in New York is not very common and very difficult to successfully carry out. A divorce judgment may be successfully appealed when it is shown that the judge in charge of the divorce settlement misapplied the law when making the final decision. This is different than contesting a fact. Rather, it must be shown that the judge reached an incorrect decision because he or she misapplied legal procedure or reasoning.

In New York, there are seven grounds, or actions, for divorce. This means that in order for a divorce to be procured, one partner must maintain at least one of the following reasons:

1. The relationship between spouses has broken down irretrievably for a period of at least six months. A divorce will only be granted on these grounds if there has been prior, equitable settlement of economic and child related issues, including financial support, division of assets and payments.
2. Cruel and inhuman treatment causing physical or mental damage making cohabitation dangerous or unsuitable.
3. Abandonment for at least one year.
4. Imprisonment for at least three consecutive years during the marriage.
5. Adultery, which is defined as any voluntary act of sexual intercourse.
6. Separation according to decree or judgment for one or more years.
7. Separation according to agreement of separation for one or more years.

An uncontested divorce occurs when two conditions are met. First, when there are no disagreements between you and your spouse over divorce related issues, including financial and child custody arrangements. Second, when either both you and your spouse agree to divorce, or when your spouse does not appear in divorce proceedings. In other words, an uncontested divorce occurs when all issues related to division of assets, property, liabilities, payments, etc. are settled, and also when either both parties agree to the settlement, or when one party does not oppose the divorce.

How to File for an Uncontested Divorce in the State of New York?

New York law requires a judge to divide property between two divorcing spouses as fairly as possible. The division of property is governed by the Equitable Distribution Law, which recognizes that marriage is an economic as well as a social partnership. The Law does not require the court to divide the assets 50-50, instead the court considers a variety of factors in determining the most fair distribution of assets.

Custody refers to the legal right to care for a child. A New York court may make custody determinations if a child has resided in the state for a minimum of six months. There are two types of custody that a New York court can assign: legal custody and residential custody. Legal custody is the right and responsibility to make decisions for a child. Residential custody is where a child will live. The court may make decisions about the custody of a child until the child is 18 years old. The court makes all custody decisions based on what it believes is in the best interest of the child, and does not favor one parent over the other on the basis of gender.  The custody decisions may be made either by a judge or referee at trial, or in an agreement reached by both parents through the voluntary mediation process.