What Is An Uncontested Divorce?

Updated February 25, 2021

Medically Reviewed By: Lauren Guilbeault

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An uncontested divorce is considered to be the "easier" divorce because there is nothing to fight, or "contest," that can't be resolved without court intervention. There may be no need to decide child or spousal support, nor marital property to divide. Uncontested divorces are usually faster to process because the parties never see the inside of a courtroom.

When an outstanding child or spousal support and marital property exists, the spouses may simply agree to the terms of a separation agreement and go on their merry way. If, however, the case proceeds to court, an uncontested divorce may be granted by a court if the defendant fails to appear in court. Here, the court may award everything to the Plaintiff by default.

The Ins and Outs Of An Uncontested Divorce

When it comes to divorce, four main issues must be settled:

  • Custody
  • Payment of child and spousal support (maintenance)
  • Division of property and assets
  • Division of debt

No divorce is considered truly "contested" because there are always disagreements. The difference is that in an uncontested divorce, these disagreements can be resolved outside of a courtroom, and potentially without an attorney.

In an uncontested divorce, the couple does not need to go through the stress of a trial to decide on the issues above. In fact, hostility is typically reduced, which allows cooler heads to prevail so that both parties can move on much faster than if they were to pursue the matter through litigation.

When a couple decides to divorce, they should first try to come to terms that they can both agree upon without needing to go to court. That way, even if they do need to go to court, the process can be streamlined because they've already come to an agreement on some of the issues on their own.

Some couples may decide that they need help to resolve their issues, but they may not necessarily want to hire an attorney. In these cases, the couple can opt for arbitration or go to a mediator, with or without an attorney present. This allows the couple to save both time and money by avoiding litigation and trial.

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Filing Pro Se For An Uncontested Divorce

If the parties file for divorce pro se, this means that they have chosen not to be represented by an attorney. In this case, the parties would need to obtain the appropriate forms from the court that would have jurisdiction over the matter.

Upon completing these forms, the parties would then bring or mail them to court, along with the related fees.A judge would then be assigned to the case. After reviewing the paperwork, the judge would then sign off on the divorce, provided nothing further was required from the parties.

When An Uncontested Divorce Becomes A Contested Divorce

Unfortunately, many uncontested divorces turn into contested ones when one or both spouses decide to turn the divorce into a fight. Maybe the husband had decided not to move out of the marital home when he had initially agreed to let his wife keep the house. Maybe the wife had decided that she wanted spousal support when she had previously waived her claim.

In this case, the parties would still be allowed to proceed pro se if they chose to do so, or they could opt to hire an attorney. In the case of a contested divorce, the parties would not consult the court for a packet of divorce paperwork. Instead, the matter would be assigned to a judge and, from there, it would proceed to litigation.

When To Hire An Attorney

In an uncontested divorce, it may still be a good idea to hire an attorney to ensure that you are protected in ways you couldn't know if you weren't an attorney. For example, if you are entitled to half of your spouse's pension, and you are unaware of this when you file for divorce, you may not be able to go back for it once the papers have been signed.

There may be insurance benefits you may be entitled to that you are unaware of, and you may have to split the cost of certain debts that you don't realize are partially yours. If there is an order of protection in place, this too can complicate things to the point where consulting with an attorney would be a helpful move.

You may even have questions about whether you are entitled to sue for divorce on the grounds you are seeking. And, depending on where your spouse may be if s/he is not living with you, it may also be difficult to serve your spouse with the summons and additional paperwork needed to start the proceedings.

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Parties who are involved in a divorce that is contested may choose to proceed pro se at first, then decide to hire an attorney later in the case if they feel the court is not adequately meeting their needs. Both parties may not hire the same attorney, as this would present a conflict of interest, and the attorney would be ordered by the court to pick a side or to abandon the case altogether.

There are also things that may come up over the course of a contested divorce that you cannot possibly predict. Suppose one of the parties loses his or her job during the proceedings. What happens to maintenance or child support then? Suppose the marital residence succumbs to property damage, and one party no longer wants the house. It is in situations like these that the parties may opt to consult with an attorney to ensure their rights are protected.

The Benefits Of An Uncontested Divorce

Perhaps the most notable benefit of an uncontested divorce is the amount of money you can save by not having to hire an attorney. And even if you do need to hire an attorney to help with the paperwork, this is still infinitely cheaper than needing someone to guide you through what is likely to be a years-long litigation process.

While there exists the possibility of any divorce, contested or uncontested, of a disagreement, an uncontested divorce is designed so that the parties can get in and get out with few cuts and scrapes. In other words, couples are granted divorces more quickly, and there are fewer demands for information and fewer proceedings needed to resolve the couple's issues.

Another benefit that many may not know about is that with an uncontested divorce, the couples have more control over their private information. Contested divorces are made public, as to are their sordid details. In an uncontested divorce, less information is filed with the court, which is less information that ends up in the public record.

The Negatives Of An Uncontested Divorce

Couples with more complicated situations may want to evaluate whether an uncontested divorce is a right move for them. The first issue is children. Couples who have unemancipated children will undoubtedly experience a more complicated divorce than couples without kids. Issues like child support, visitation, medical insurance, and schooling choices must all be decided and agreed upon.

Some states don't even permit couples with children to file for an uncontested divorce. In fact, couples with children are subjected to filing additional paperwork to ensure that the rights and needs of the children are adequately met.

Couples who disagree on spousal support or property arrangements may also do better to let a court and their attorneys help them agree. Yes, hiring an attorney and going to court is a costly process, but it can be cheaper in the long run than the amount of money you could end up spending and losing when you are inexperienced on the law.

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Settling a Divorce Before Trial

Sometimes, a couple will go through litigation to the point of trial, then reach an agreement on the terms of the divorce before they make it to the trial. This is called a "settlement." What's great about a settlement is that the parties do not have to worry about the other spouse filing an appeal because the court did not decide for them; they made it for themselves. This means that, for the most part, they have agreed.

If the parties settle, it is important to document it. Therefore, the next step is for a settlement agreement to be drafted, either by the pro se Plaintiff or his or her attorney. The settlement agreement then works as a legally binding document, and its provisions can be enforced in the future by a court if one of the spouses fails to live up to that agreement.

Judges and lawyers are there for you if you need to pursue a matter to trial; however, most prefer to settle out of court in much the same way as if the couple was proceeding in an uncontested fashion. If the parties have difficulty agreeing by themselves, their lawyers will usually help them do so before the matter proceeds to trial.

Do you need to consult with a licensed professional before determining whether you should file for a contested or uncontested divorce? Reach out to one of our counselors today, and they can help you understand which option would be best for your particular situation.

Sources:

https://www.nycourts.gov/divorce/divorce_withchildrenunder21.shtml

https://www.legalzoom.com/knowledge/divorce/topic/uncontested-contested-divorce

http://family.findlaw.com/divorce/uncontested-divorce.html


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