How often do spouses call and say:
“Look. I don’t want to go through a separation, I just want to get divorced. I know I have to wait a year. I want to get divorced as soon as possible.”
There is a lot of misinformation out there about the waiting period in New York, so let me try to clarify it. As of October 2010, there is no longer a one year waiting period. As far as getting divorced goes, you don’t have to wait a year to file the divorce action. Nor do you have to allege fault or blame your spouse for doing horrible things in order to get your divorce. You can now file under the 7th ground for divorce, “Irreconcilable Differences,” which people refer to as the “no fault” statute.
However, in New York, divorce is a two-step process. First step, you must get a Settlement, Separation, or Divorce Agreement – which are all names for the same document. There is no waiting period. You can file the Settlement Agreement and the Divorce Action with the court at the same time.
Question: “Do I need a Settlement Agreement? Why can’t I just get a divorce?”
In the past, these were called bifurcated hearings. A judge might permit a bifurcated hearing in which the divorce would be granted first and then later you would come back to deal with the matters of equitable distribution, the parenting plan, division of assets, etc. But people weren’t coming back, so it was decided, and actually codified in a statute, that before there is a divorce decree issued, there has to be a Settlement Agreement which will be incorporated into the divorce action.
So, the Divorce Two-Step is:
1. Get a Settlement Agreement
In mediation, I will help you negotiate the terms of your Agreement by providing you with information about the law which will help you with the division of assets and determining support. I also assist you in developing a parenting plan, if you have children. My attorneys will then prepare the Agreement and we will review it together.
2. Filing the divorce action.
We will assist you in filing the divorce action at a discounted rate.
In conclusion, the Divorce Two-Step is necessary in order to get divorced.