Clients often ask about the difference between uncontested divorce and no-fault divorce. Although the terms sound very similar, they refer to two different aspects of divorce law. Generally speaking there are two types of divorce: contested and uncontested. Contested divorce is exactly what it sounds like. The parties cannot agree on the division of property and/or assets or there are custody issues, so the divorce is contested. In a contested divorce, it is important to find an attorney who specializes primarily in the field of matrimonial law. Your lawyer should be able to break down your case so that you understand its possible weaknesses. The attorney that you choose should also develop a strategy for you in order to help overcome the weaknesses on your case.
In a situation where the parties have no property and/or children or can agree on all essential terms of the divorce in a “stipulation”, the divorce is considered uncontested.
Either way, a divorce when filed (be that contested or uncontested) must indicate on what grounds the parties wish to dissolve the marriage. In New York, there are seven grounds upon which a party may file for divorce:
- Irretrievable breakdown in relationship for a period of at least 6 months
- Cruel and inhuman treatment
- Imprisonment of one party
- Divorce after a legal separation for at least one year
- Divorce after a judgment of separation
The first ground – irretrievable breakdown in a relationship for a period of at least 6 months – is what is commonly referred to as a NO-FAULT DIVORCE. To use this ground, the marriage must have broken down for period of at least 6 months, and all economic issues, including debt, how the marital property will be divided, and custody and support of the children have been settled. New York State did not permit a “no fault divorce” until 2010 when the law was amended to add these additional grounds for people who wanted to get divorced but not claim any fault on behalf of either party.
In summary, whereas the term “uncontested divorce” refers to the type of divorce where the parties are not contesting any issues, the term “no-fault divorce” refers to the grounds upon which the divorce is being sought, i.e. irretrievable breakdown of the relationship for at least 6 months.