- 1. What Is an Uncontested Divorce?
- 2. How Uncontested Divorces Differ From Contested Divorces
- 3. The Differences Between Uncontested Divorces and No-fault Divorces
- 4. Can Couples With Minor Children or Substantial Assets Have an Uncontested Divorce?
- 5. Do We Need Attorneys in an Uncontested Divorce?
- 6. Pros and Cons of Uncontested Divorce
- 7. When Uncontested Divorce Isn’t a Realistic Alternative
- 8. Common Questions
Anticipating a divorce can be tasking on your emotions. Most people associate divorces with malice, and this can make the waiting period hard on you. However, if you and your spouse want to avoid bad blood, you have another option- uncontested divorce. Not only is it cheaper, but it also takes less time. Plus, it has the added advantage of privacy. We will cover what it entails, what you need, and why it may work for you.
What Is an Uncontested Divorce?
In the past, couples would take each other to court and cite the reasons for their divorce. Possible reasons included adultery, drug abuse, and abandonment. You can still go to court and cite such issues as the cause of a divorce. In doing this, you initiate a fault divorce where you require to prevent evidence of the wrongdoing. Your spouse also gets to present a defense and can walk away scot-free if nothing sticks. You get the gist- it’s a lot of back and forth that frustrates you and your spouse. Back in the day, it was common for people to do this.
However, nowadays, most people want to be over and done with their divorces. Instead of battling it out in court, they agree on pertinent issues. As the name uncontested divorce suggests, you and your spouse should be on the same page on:
- How you will share the debts incurred during the marriage
- How you will divide the property that you have amassed during the marriage
- Whether you will award any spousal support, how much it will be and when the spouse will get it
- Whether you will share child custody and how long each spouse will have access to the child(ren)
- How you will share parental responsibilities
- How you will dissolve existing businesses, buy each other out or run the businesses in the future
Please note that an uncontested divorce does not amount to a no-fault divorce. While these types of divorces have similarities, there is one key difference.
In a no-fault divorce, you petition the court for a divorce based on irreconcilable differences or irretrievable breakdown of the marriage. However, it does not necessarily mean that you are on the same page on pertinent issues on the divorce. All it means is that you will not air each other’s dirty laundry in public.
In an uncontested divorce, you agree to go your separate ways amicably. Additionally, you agree on how you will go about it and petition the court for a divorce based on your agreement.
Couples going through an uncontested divorce do not have to present arguments in court. Instead, all you do is fill out the court paperwork and detail what agreements you have reached. The judge will review what you have presented and rule on this. In most cases, the approval should go by without a hitch. However, where the agreement is disadvantageous to one spouse, the judge may reject the petition. Also, if one of you claims duress at the time of the agreement, you may need to go back to the drawing board.
Once everything checks out, you will need to separate from your spouse for a predetermined period formally. This time depends on the state and is usually 180 days, after which you can finalize the divorce.
Please note that while the process may seem simple, it might be complex in your case. You may have to spend more time on the agreement if:
- You have a large portfolio of assets and dividing them requires a lot of paperwork
- One of you is not able to support themselves financially without the help of the other
- You have minor children
Generally, such divorces are ideal for couples that have been together less than five years. Most states offer procedures to simplify the processes. You may need to consult an attorney if your divorce seems complex.
How Uncontested Divorces Differ From Contested Divorces
The main difference is the agreement between the spouses. In an uncontested divorce, you and your spouse agree on handling children, properties, child support, and alimony. By deciding what works for both of you, it becomes easier to reach a fair decision.
However, in a contested divorce, you cannot agree on pertinent matters and need the court to decide for you. For example, if you cannot agree on child custody, you may need a neutral party to step in and help decide the best outcome. Unfortunately, involving the court can be costly and also takes a lot of time. Additionally, going through the motions with your spouse can make you harbor resentment against them.
If you decide to go through with a contested divorce, you can expect to:
- File a petition with the court to divorce your spouse or have your spouse serve you with papers
- Present paperwork on your legal and financial status
- Go through discovery processes on your part and your spouse
- Sit through a trial and present evidence and defenses based on your spouse’s actions
- Bring in an attorney to represent you or a child matters expert to handle the case
Contested divorces can be stressful to all parties involved. If you can avoid going down this road, it might be time to consider this.
The Differences Between Uncontested Divorces and No-fault Divorces
Like we earlier mentioned, an uncontested divorce does not amount to a no-fault divorce. While these may have significant similarities, they are not the same. It is possible to file a no-fault divorce and have your partner contest the terms. Take an example of if you decide to divorce based on an irretrievable breakdown of the marriage. Let’s suppose that your spouse requires spousal support from you and puts this down in their petition. When they serve you, and you realize what they want to claim, you can contest the divorce. In this case, you’re not trying to keep them from divorcing you. But instead, the goal is to get a fair deal out of the divorce, resulting in a contested no-fault divorce.
Suppose you and your spouse have agreed on all details, you can file your agreement with the court as earlier outlined. In your case, you would have an uncontested no-fault divorce.
No-fault divorces have become more common, with more states allowing couples to avoid hanging each other out to dry. You can get one, and based on how you and your spouse go about it, the divorce can either be contested or uncontested.
Can Couples With Minor Children or Substantial Assets Have an Uncontested Divorce?
Uncontested divorces generally work for all couples as long as you and your spouse can agree on significant issues. However, for the judge to approve the agreement, you have to prove that:
- It is fair to both parties, and nobody is suffering the short end of the stick
- None of you was under duress at the time of negotiating and signing the agreement
- You have agreed on all pertinent details and do not need to argue it out in court
It’s easy to check all the requirements above. However, please note that where children or large portfolios are in play, agreeing on all matters can prove challenging. You may find it hard to agree on some issues, such as property division. If this happens and you want to avoid litigation, you can always bring in a neutral party. Mediators and negotiators are great options as they will help you communicate with each other and reach a compromise. Attorneys can also help you reach an agreement, though it will cost you more.
Do We Need Attorneys in an Uncontested Divorce?
Your need for legal presentation or advice will depend on the state of your marriage. If you and your spouse have been married for a few years, have no children, and few properties together, you can avoid hiring attorneys. Most states will have procedures in place to help you file an uncontested divorce. All you will need to do is share the existing assets and go your separate ways.
However, if you and your spouse have children or many assets to your name, you may need a lawyer. Also, this applies if you do not trust your spouse and think they can pull the rug out from under you. An attorney can go through your financial and legal paperwork and find the best strategy for you. While legal services are costly, they can help you avoid pitfalls now and in the future. A lawyer can also make sure that you do not bind yourself to an agreement that will adversely affect your finances in the future, e.g., high alimony payments.
It’s common for couples to try and save money by hiring one lawyer to do the paperwork. It may seem like a good idea, but only if you’re the one represented by the lawyer. Otherwise, your spouse may have an advantage over you and can conceal important details about the agreement. Having your own legal set of eyes on the paperwork can prevent this blindsiding.
You have an option that lies between DIY and hiring a lawyer: using a mediator. A mediator is a neutral party that can help you negotiate the terms of your divorce. Once you and your spouse agree on the most critical details, the mediator can create an agreement to present to the court. It’s an easy way to save on costs and preserve your existing relationship with your spouse.
Legal Document Preparers
Suppose you and your spouse agree on all matters and don’t need a lawyer, you can hire a legal document preparer. This professional, also known as a paralegal, can draft court forms on your behalf. Their work is to create legal documents and not offer advice. If you need legal help, you can seek a lawyer’s help or browse online and physical legal resources for this.
Pros and Cons of Uncontested Divorce
Should you go through with an uncontested divorce?
Not battling it out in court and dragging the litigation for months will help you cut back on costs. You can save even more by paying only filing fees and avoiding attorney and mediation costs. Even if you decide to hire a neutral party to help with the paperwork, the costs will not be as high as litigation fees.
Also, you get to enjoy privacy by not having your divorce inner details on the record. You and your spouse can maintain a good relationship for the benefit of your children and the future. Plus, it takes less time to get a divorce!
If your spouse has a history of abuse or has more power in the relationship, an uncontested divorce can disadvantage you. Also, if you and your spouse cannot communicate effectively and agree, this divorce option will not work. You can tell it’s not working if storming out, screaming, and silent treatment are part of the negotiations.
Finally, if you and your spouse do not understand the implications of your decisions, you could end up with a bad deal. Even without trying to hurt each other, you may do so. You may need a lawyer to get a better outcome and protect yourself.
When Uncontested Divorce Isn’t a Realistic Alternative
Uncontested divorces are ideal options for couples who can communicate effectively without abusing their power. Often, an imbalance in power can result in a communication breakdown. For example, if one spouse is more emotionally or financially stable, they may use this as a weapon. One spouse may feel like they are under duress and may end up agreeing to a disadvantageous agreement.
Even so, you can always consider other options like mediation. They will cost less and can help you see things eye to eye. Litigation is best when used as a last resort. But before getting there, try and see what else can work for your good and that of your dependents.
How Much Does an Uncontested Divorce Cost?
Different states have different filing fees. You will need to check with your local courthouse on how much you will pay for filing. Also, if you will hire an attorney or any other third party, you need to check how much they charge. All in all, you are likely to spend less than $2,000 (attorney, legal document preparers, and court filing fees included). If you have less help, you can even spend a couple of hundred dollars.
Read our complete guide about the costs of an uncontested divorce.
Uncontested Divorce: How Long Does It Take?
It comes down to how long the processes are. Generally, states require that couples separate for 180 or so days before finalizing their divorce. If your paperwork is not much, you can be done within this time. However, if you have lengthy asset divisions and child custody negotiations, it could take much longer. The time will be specific to your needs.
Read our complete guide about how long does an uncontested divorce take.
How Can I Figure Out if I Can Keep the House We Both Live in?
The house, being an important asset, is usually a source of concern for most couples. The decision will heavily rely on your state laws. If you live in a community property state, anything acquired during the marriage is communal property. Examples include Nevada and Idaho. In equitable distribution states, on the other hand, split the home based on earnings. The spouse with a higher earning capacity gets two-thirds of the house in most cases.
Your case will depend on your state, financial and legal status, and the agreement with your spouse. You may want to look into your state laws before petitioning the court for a divorce.