Divorce doesn’t have to include endless litigation and be a hostile war.
Instead, couples that are in agreement in terms of their separation including property and child separation can proceed with an uncontested divorce.
This process also eliminates the need for long, drawn-out, and costly litigation, but policies and requirements vary from state to state.
I’ll walk you through the process to give you an understanding of how an uncontested divorce works and offer you the opportunity to prepare you for it, as well as give you the pros and cons of this type of divorce and what to do if you decide this is the option for you.
What is an uncontested divorce?
An uncontested divorce is a situation in which neither spouse disputes the other’s right to divorce.
In order to have an uncontested divorce, the couple must agree on the big issues by themselves or with a mediator including the following
- Child custody and visitation
- Child support
- Spousal support
- Division of marital assets and debts
Filing methods vary by state but usually include filing a signed document containing the details of their agreements to the court.
Furthermore, to file for an uncontested divorce spouses must also meet residency requirements in their states (and sometimes county). You should understand what your region requires, since it can range from nothing to a 6-month waiting period for incoming residents.
Also, an “uncontested divorce by default” will occur if another spouse does not respond to the divorce papers and a certain specified period of time passes without that spouse showing up to court.
If and when this does occur, a judge examines the divorce documents presented by the filing spouse and resolves the case in accordance with state laws.
Contested vs. uncontested divorce
Both contested and uncontested divorces have different systems as well as advantages and disadvantages.
Thus, the major distinction, from a supreme view is who creates the final terms of the divorce, the judges, or the spouses.
Contested divorce
In a contested divorce, spouses are in disagreement over primary settlements involving the division of property or children’s custody. It could be one thing, or five things, but either way, they are unable to come to a mutually agreeable decision to the contested aspect of their separation.
If the couple cannot agree, the divorce goes to court, and a judge determines the outcome. A contested divorce will typically entail:
- Filing of a complaint, petition or other documents, including net worth or financial statements, with the court.
- Responding to the petition or complaint if you are the party served
- To serve and respond to motions
- experimenting or in the process of finding out information from your partner
- Trial with witnesses
- Possibly working with a children’s attorney or guardian ad litem representing your children
This process can last anywhere from a few weeks to several months and can become very costly in terms of legal fees depending on the nature of the dispute(s). This makes it in each spouse best interest to address and resolve as many conflict points as possible before it enters the courtroom.
Positives:
- A court resolution creates a legally binding agreement.
- Both spouses may argue their position.
- This procedure at least prevents unfair redistributions should both the involved individuals have contrary opinions.
Downsides:
- Frequently months to resolves the process.
- Much higher legal costs including attorney fees, court costs and lost work time.
- Emotional trauma for both the couple and any children or dependents.
- A judicial party determines the outcomes and may not appease completely both parties.
The contested divorce process, as you can see, can be drawn out, expensive and emotionally taxing. Except in situations where two spouses cannot negotiate, a contested divorce is never advisable.
Uncontested divorce
In contrast, an uncontested divorce follows a simpler procedure and does not involve much of the tedious court hearings.
The court is relegated to the enforcer of always amicable decisions, and the role that is left for litigation of court is to make sure that they don’t do anything illegal, or against the law and that they act in the best interests of the children (if there are any).
One person files, the other serves, and they both agree on the terms. Here, the procedure is usually:
- Drafting and then filing a settlement agreement
- Court review
- Brief court hearing (if necessary)
- Final judgment
If the couples file a viable Marital Settlement Agreement and meet the residency qualifications, as well as can agree on the terms of their divorce, the court will probably accept the uncontested divorce.
Positives:
- Faster process, typical process takes a few months.
- Lower legal costs due to less attorney hours and court fees.
- Peaceful divorce and less emotional hardship.
- It involves a higher level of control of the final outcome, since the terms are agreed upon by both.
Downsides:
- Each term must be agreed upon in its entirety, which not all couples can do.
- Will not work well with financial entanglements or serious power differentials.
- Lack of supervision or oversight may result in misses: what is not in the law that should be; also, sometimes something is not provided for and has teeth down the road.
- Less ability to bargain over unfair terms when one of the parties feels compelled to agree.
In general, the process of this kind of divorce is quicker, cheaper, and not as traumatic as no expensive court battles are necessary to settle it.
How much does an uncontested divorce cost?
While one can still expect that the costs of an uncontested divorce will be significantly less than the costs of a contested divorce, the ultimate cost can be a range. Price is another factor – spouses who use a lawyer will pay more than those who do not, pro se, or pro per in California. Here is a general idea of what the costs for an uncontested divorce would be:
- Court filing fees: Differ by state and county but typically range from $80- $400. On top of that, some courts permit filing fees to be waived or reduced for those who can document financial inability to pay.
- Attorney fees: If you want to hire an attorney your case may cost you anywhere from $1,000 to over $4, 000 depending on your attorney’s rates and your case. But flat fees are available from some attorneys for a divorce that is not contested, bringing a measure of clarity to costs.
- Mediation: If you use a private mediator to resolve disputes with your spouses you can expect to pay between $3,000- $8,000. This is usually divided equally between the two spouses. For partners, in some instances, the state provides low-cost mediation services.
- Document preparation: If you use document preparation or legal assistance services to finalize your settlement, you may be charged an additional $100-500.
All told, an uncontested divorce can run between a few hundred and upwards of $3000, should attorneys or mediators be required.
How to know if an uncontested divorce is right for you
While the cost savings and efficiency of uncontested divorce can make it attractive to so many, it does not work in all cases. Here are some key points to look at to know if an uncontested divorce is right for you:
You and your spouse agree. You are aware of each and every one of your spouse’s past and current assets (so you won’t be worried that there is some secret real estate or secret bank account). You can also come to an agreement on how you want to split everything.
You may come to a custody arrangement. If you have children, you and your estranged spouse can make up a custody agreeable to the both of you for your children.
You just want it to be over. If you want to finalize the divorce quickly, uncontested is faster.
You don’t want to pay dearly for a divorce settlement. If they find that their total value/quantity of marital assets do not make worthwhile the expenditure associated with a more costly legal process then an uncontested divorce might be the best choice for them.
You strive to end on good terms. Uncontested divorce also is not the same as an agreement between couples from the outset, but it does take the ability, effort and willingness to work cooperatively and compromise.
In a nutshell, an uncontested divorce is the best way to divorce if you and your spouse wish to end the marriage amicably and with little to no time in court, legal fees, and family drama.
If you feel pressured, or that you are being taken advantage of, that might be the time to at the very least, Seek the advice of an attorney to make sure you receive what is fair.
How to get an uncontested divorce
Spouses electing for an uncontested divorce have a few options to proceed; via the use of attorneys, mediation, or self-preparation.
They do but have to fulfil state residency requirements and often also have to meet a mandatory waiting period. While the logistics of a no-fault divorce might differ slightly from state to state, the process often appears as follows:
Settle on terms
Before filing, it is always good to discuss with your spouse before court. Spousal support, child custody, marital property division, and debt allocation are the big factors that each of you must agree upon. Again, clear communication and a willingness to compromise is key here as this divorce can later very easily become contested if you don’t see things the way your spouse expects you to.
Prepare, file, and serve the petition
One spouse is designated as the “petitioner” and drafts and files a divorce petition or complaint in county court. It is the record that begins a legal divorce and sets out the specific terms of the dissolution.
As mentioned earlier, the cost to file for divorce ranges from state to state, but typically costs between $80 and $400.
But, a spouse (referred to as the respondent) must also be served with the divorce summons through a sheriff, process server, or certified mail.
Respond and accept
This petition is then reviewed by the respondent, who agrees to the terms of the petition. This establishes that all parties are in agreement and are motivated to move ahead with a minimal level of contention.
Draft and submit the settlement agreement
The spouses then collaborate on a fair settlement agreement, which outlines the specifics of their divorce. Among these points, and others that may be pertinent in your state, the following is what this document must recite.
The court also asks for additional divorce pleadings, like financial affidavits, information for minor children, or grounds for divorce. Each of these forms need to be completed and filed correctly for the court to act.
Judicial review and final decision
The court must then review the settlement agreement to ensure it is “fair” as well as obtaining compliance with state law.
Sometimes, couples may have to appear in court for a short hearing, at which time the judge will ask each party questions to ensure they know what they are getting into. If granted, the court enters a final divorce decree granting the marriage as terminated as negotiated.
How an attorney can help
Though filing for an uncontested divorce by oneself is possible, for all of the legalities, nuances, state laws, and court operations a lawyer is a safer bet.
In preparing your legal paperwork and walking you through the law of your state, from the get go an attorney will make you feel well informed.
Better yet, you can even consult with an online uncontested divorce lawyer via LegalZoom. But at least you get low, predictable costs and the comfort of knowing your divorce is being done the right way.
