Divorce Litigation

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China divorce lawyer provides: how to get divorce through non-contest procedure in China
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Who Gets Represented
For starters, the person who is represented will be the plaintiff, the one "asking" for the divorce. If it's offensive to either of you to be the one who asks for the divorce in the legal documents, that may settle the question right there. For most divorcing couples, though, neither spouse has a strong objection to being the plaintiff. If that's the case with you, that means it frees you up to focus on the practical considerations.

Start with the assumption that the lawyer in an uncontested divorce is looking out after his or her client. That means that having the lawyer on your side and not on your spouse's side is a powerful advantage. Once you understand that, it makes sense that the lawyer should represent the spouse who needs help the most.

Who needs help the most? I encourage you to apply three factors to make this decision: The spouse who is the left gets some points (if this is unfamiliar to you, check out The Three Divorces).
 The spouse who is less financially savvy gets some points.
 If one of you is considering filing bankruptcy and the other is not, the one who is less likely to file bankruptcy gets some points.

The difficulty that uncontested divorce presents, of course, is that the person who's ready to get the divorce under way, ready to take the initiative, and ready to contact the lawyer is the leaver, the one who's not in crisis. So like it or not, the lawyer often ends up representing the spouse who needs it the least. That's where the safeguards come in.
Disadvantages of Uncontested Divorce
The first disadvantage of an uncontested divorce flows from its very simplicity. If, for example, you and your spouse hold joint title to real property or owe money jointly, or if your children have unusual parenting needs, resolving them in uncontested divorce may be awkward.

The second disadvantage of uncontested divorce arises from the way the law looks at the role of the lawyer in divorce. Like it or not, the law sees divorce as an adversarial contest between you and your spouse. And because a lawyer must not represent two parties who are competing with each other, the lawyer cannot represent both of you. He or she must represent either you or your spouse. In an uncontested divorce, that means the other party will not have a lawyer at all. That's an imbalance of power between the spouses.

Safeguards for the Unrepresented Spouse
The simplest safeguard, and I believe the one that makes the most sense, is a coach for the spouse who is not represented. In this context, the coach simply reviews the papers after they've been drawn up, quizzes his or her client about the facts of the divorce and what the client wants to accomplish, and reviews with the client the options available.

It's simple, quick, and relatively inexpensive. It gives the client the information that he or she needs before signing the divorce papers, but it doesn't push the divorce into a protracted adversarial battle.

The other safeguard is for the unrepresented spouse to gather lots of information about the divorce from as many sources as possible. DivorceInfo is a good source, of course, but shouldn't be the only source. There's lots of information available from other sites on the web, and lots of good books on the subject. One of my favorites is pricey but thorough, Divorce and Money. You can check it out if you're interested.

You can obtain an uncontested divorce when both parties have agreed on all divorce related issues such as spousal support, division of marital assets, child custody and parenting time, child support, health insurance and life insurance.

Even though the divorce is uncontested it is best for the parties to execute a Separation Agreement, which covers all of the terms of the parties post divorce relationship.

You can also obtain an uncontested divorce if your spouse does not appear in the divorce action or does appear but does not oppose the divorce.

In order to use the New York courts for a divorce, contested or uncontested, you must meet the residency requirements:

1. One of the parties is and has been a resident of New York for the year immediately before the action was started.


 a. the parties were married in New York, or
 b. the parties resided in New York as husband and wife, or
 c. the grounds for divorce occurred in New York.

2. The grounds for divorce occurred in New York and both are residents at the time the action is commenced.

3. Either party has been a resident for a continuous period of two years before the action was started.

The spouse seeking the divorce (the Plaintiff) must show that the other spouse (the Defendant) meets the statutory requirements.

The divorce grounds are:Incarceration. Confinement of the defendant in prison for a period of three or more consecutive years.

Adultery. The commission of a voluntary act of sexual or deviant sexual intercourse by the defendant with a person other than the plaintiff. Deviant sexual intercourse includes, but is not limited to, anal intercourse, fellatio, cunnilingus, pedophilia, zoophilia and necrophilia.

Abandonment. The desertion of the plaintiff by the defendant for a period of one or more years without just cause or consent and without intention to return.

Physical Abandonment is where one spouse moves out of the marital home for a year or more and literally deserts the family.

Constructive Abandonment (also known as constructive sexual abandonment). The defendant has refused to have sexual relations with the plaintiff for more than one year without just cause or the consent of the plaintiff.

Cruel and Inhuman Treatment. Conduct by the defendant toward the plaintiff that so endangers the physical or mental well being of the plaintiff as to make it unsafe or improper for the plaintiff to cohabit with the defendant.

Separation Decree. This is based on the same four grounds of fault described previously. In addition, lack of child support may be considered grounds for a separation decree, though not for a divorce. Finally, abandonment may be considered sufficient grounds for a Separation Decree, even if it is for less than one year.

Conversion Divorce. When a husband and wife mutually agree to divorce, and both desire to do so without allegations of fault, they can sign a detailed contract (a Separation Agreement) that sets forth their rights and obligations in terms of distribution of property, maintenance, child support, custody, visitation, and all other legal matters that pertain to the marriage.

 After they have lived separate and apart, pursuant to the Separation Agreement for more than one year, either one may sue the other for “no-fault” divorce. The plaintiff must prove that he/she have lived up to the terms of the Agreement.

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