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Informative posts about Divorce, Dissolution, Child Custody and Family Law.

Uncontested Divorce and What You Need To Know About Uncontested Divorces

Uncontested Divorce – What Do You Need To Know About Uncontested Divorces?

Going through a divorce is not easy regardless of whether it is amicable or contested; however, ending a marriage is generally both painful and a relief. Spouses sometimes find they are much better friends, parents, and people if they are not married to each other and living together. Unfortunately, there are legal issues that must be addressed when you decide to get divorced. Because each state has different laws relating to divorces, you should always seek the advice of an experienced family law attorney within your state before you do anything, including but not limited to leaving the marital home, if possible.

What Is The National Divorce Rate?

According to the Centers for Disease Control and Prevention, there were 851,000 divorces during 2012 excluding data from California, Georgia, Hawaii, Indiana, Louisiana, and Minnesota. The number includes all divorces whether they are a contested or uncontested divorce. You can get information about the divorce rate in your specific state by viewing the NCHS National Vital Statistics Reports.

couple unhappinessEven though this may seem like a large number, the divorce rate has actually declined in recent years. According to an article in the New York Times, the divorce rate has been decreasing during the past few years. In fact, the author states that the higher divorce rate during the 1980s may have simply been a “historical anomaly” rather than a growing trend. According to the article, with each decade since the 1970s, the average length of a marriage has increased. This could be due to more people waiting until later in life to marry producing marriages involving adults that are more mature, confident, and ready to focus on their future.

The American Psychological Association states that healthy marriages positively effect a couples’ mental and physical health. Unfortunately, more than 20% of first marriages will end in divorce during the first five years of marriage with almost half of all marriages ending before the couples’ 20th anniversary. The APA advises that couples who can cooperate, communicate, and use mediation to resolve their issues may avoid some of the overwhelming grief, anger, fear, anxiety often accompanying the ending of a marriage. Uncontested divorces often produce far less of these negative emotions when compared with a contested divorce.

Unfortunately, when a couple decides to terminate their marriage, there will be legal issues that must be handled. Even though each state’s divorce laws are different, a couple is required to take some form of legal action to end a marriage. Some states have adopted very liberal family laws that allow for simple, uncontested divorces that can be completed without the assistance of an attorney if the parties agree on all terms of the divorce and the parties are able to complete the necessary documents to file with the court themselves. These states have what we call a no-fault divorce meaning that neither spouse needs to prove fault on the part of the other spouse in order to obtain a divorce. Other states have much more rigid divorce laws that require the assistance of an experienced family law attorney in order to prove fault for the breakup of the marriage.

How Can I End My Marriage?

In most states, couples can end a marriage in one of three ways. Your state’s divorce laws may or may not provide for all three of these legal proceedings to end your marriage; therefore, the best way to ensure that you are ending your marriage in a manner that protects your best interests, you should always consulted an experienced divorce attorney within your state.

  • Divorce – Divorce is the most well-known legal proceeding used to end a marriage and almost all states have laws providing for divorce. A divorce is a legal proceeding with a plaintiff (the person filing the lawsuit) and a defendant (the person whom the lawsuit is filed against). The plaintiff files a petition or complaint with the court that is served on the other spouse asking the court to end the marriage. Some states require that the plaintiff have “grounds” such as adultery, habitual drunkenness, abuse, or abandonment in order to obtain a divorce. In some cases, if the plaintiff cannot prove “fault” on the part of his or her spouse, the law provides that if the parties live separate and apart for a certain period of time, the court will grant the divorce. However, some states do provide for “no fault” divorces whereby a spouse may end the marriage simply because the spouse does not wish to be married to that person any longer. If the defendant does not reply to the complaint, the court may assume this is an uncontested divorce and grant the plaintiff’s requests without any further action.
  • Dissolution of Marriage – Some states provide a way for the couple to end the marriage through a joint petition for dissolution. The parties must agree to all terms and provide the court with a separation agreement outlining how the couple is settling issues related to property division, alimony, child support, custody, and visitation. Therefore, a dissolution of marriage is only used in an uncontested divorce because both parties must agree on all terms.
  • Annulment – An annulment is not a divorce. If the plaintiff is granted an annulment, it will be as if the marriage never occurred. The court will void the marriage and return the parties to their previous “single” status. Each state defines the laws under which a person may receive an annulment but it is typically only available in cases of fraud, bigamy, or if the marriage violates state law.

Regardless of the way you end your marriage, most experts agree that an uncontested divorce is the simplest, most cost-effective, and least traumatic way to end a marriage.

What Is An Uncontested Divorce?

hand shakeThe simplest definition of an uncontested divorce is a divorce action where the parties agree as to all issues and terms of the divorce. For example, if a couple agrees as to all of the issues and terms of the divorce such as custody, child support, visitation, alimony, and property division, there is no reason for the court to intervene to decide these matters except in the case where the best interests of a child is in question. The couple has resolved all issues related to ending their marriage and the couple is simply requesting that the court review the agreement, approve the terms of the agreement, and legally end the marriage.

On the other hand, if one spouse leaves for whatever reason and desires to end the marriage without the cooperation of his or her spouse, the spouse desiring a divorce must file a complaint and serve that complaint on his or her spouse. The spouse receiving the complaint has a limited amount of time in which to respond to the complaint contesting the allegations, making allegations of his or her own, or agreeing with the allegations of the complaint.

If the spouse who is not filing for divorce responds to the complaint contesting the allegations, the divorce is contested and the court decides the issues that are contested. However, if the spouse does not respond to the complaint or responds but agrees with the allegations made in the complaint, this is considered an uncontested divorce. The court will most likely grant the requests made in the complaint provided the requests do not violate any state laws.

As discussed above, a dissolution is, in most cases, considered an uncontested divorce because the parties must agree as to all terms and issues of the divorced in order to file a joint petition for dissolution of marriage. The exception to this general rule is within states that have adopted family laws that have moved away from the term “divorce” and adopted the term “dissolution of marriage” as the only means to legally end a marriage within that state other than through annulment. In these states, a dissolution of marriage could be considered a contested divorce or an uncontested divorce depending on the circumstances.

Can Couples Have An Uncontested Divorce If Children Are Involved?

childrenYes, a couple can have an uncontested divorce even if they have children. The key to an uncontested divorce is that the couple agrees as to all issues and terms of the divorce. Provided that the couple can work together to develop a parenting plan that addresses custody, visitation, and child support that the court will approve, the couple can proceed with an uncontested divorce.

In many cases, a couple who can communicate with each other to mediate their differences and file an uncontested divorce have a much more satisfactory agreement compared to a couple who must have a judge decide the issues related to the children. When parties argue over issues related to the children, the court must decide what is in the best interest of the children. In most cases, the couple is left with an arrangement that may or may not be in everyone’s best interest. Judges do not know your children as well as you do nor do judges know everything about your life and your family. You and your spouse are the best people to decide how to parent your children; therefore, if you can work together to obtain an uncontested divorce, you will likely have a more suitable and acceptable parenting plan.

Tips that help couples work together to resolve their issues so they can file for an uncontested divorce rather than proceed with a long, costly, and emotional court battle include:

  • Do Not Use Verbal Attacks – Even though emotions run high during a divorce, verbally attacking your spouse will not produce an acceptable settlement agreement. If either party gets off track, even if what that person is saying is true, it will lead to a breakdown in communications.
  • Remain Focused on the Bigger Picture – You may be hurt by what your spouse has done; however, the bigger picture is what you want to focus on during your communications. Where do you want to be a year from now, five years from now, and so forth? Keep your mind focused on the goal of amicably resolving the issues of the divorce so that you can move on with your life.
  • Ask for What You Want and Know What You Will Accept – Be prepared to ask for the terms you want and to defend those requests, in a civil manner, with facts rather than emotional pleas. Do not wait on your spouse to offer what you want. Begin the conversation with your top demands and then be willing to compromise. Knowing your “bottom line” allows you to negotiate more effectively.
  • Do Not Assume or Make Assumptions – It might be tempting to read things into what your spouse says; however, this can lead to confusion, hurt, and anger. Both parties should use clear, concise language to communicate with each other so there are no misunderstandings.
  • Step into the Other Person’s Shoes – Make an honest effort to look at the situation from your spouse’s point of view. Put aside the hurt feelings and anger so you can understand your spouse’s position more clearly. Actually listen to what your spouse is saying and ask yourself if you were saying this would it be reasonable to you.
  • Do Not Refer to Each Other in the Third Person – It may be tempting to refer to your spouse in the third person because you are angry and hurt. Speak directly to your spouse, using his or her name, to avoid the feeling that you are dismissing your spouse or diminishing his or her value and importance.
  • If You Cannot Agree, Come Back to That Subject – Instead of fighting over an issue if you cannot agree on amicable terms, choose to put that issue aside and come back to that issue later in the mediation. However, do not refer to this as, “We will just put off that fight until later.” This is very combative and not conducive for communication. Instead say, “Let’s table that issue for now and return to it at the end.”

What About Property Division?

property divisionThe same concept that applies to the issues of custody applies to the division of marital assets and marital debt in an uncontested divorce. If the parties can agree as to how the martial assets and marital debts will be divided when the marriage is ended, the parties can proceed with an uncontested divorce. Only in cases where the parties are arguing over property and debt does a judge need to step in to make decisions for the couple. Again, if you and your spouse can agree to property division issues, it will reduce the level of stress and anxiety you experience from arguing in front of a judge and waiting for the judge to make a ruling in your case.

Tips couples can use for settling property division issues include:

  • Make a List – Begin by making a list of everything you and your spouse owns. Mark the items that you allege are not marital property (i.e. your mother’s jewelry you inherited). Then mark the items of marital property that you allege should be given to you.
  • Value Your Property – It helps if you determine the value of any asset that is worth more than $500. For larger items such as homes, real estate, and vehicles, research the actual value of the item online or with a realtor or appraiser.
  • Do Not Fight Over the Small Stuff – Take your property division list and mark the items that you could do without even though you allege the property should be yours. There are always some items that you may want but that you are willing to give up to keep other items. In other words, have a “wish list” and a “reality list” prepared before discussing property division.
  • Never Hide Assets – If you attempt to hide assets and your spouse discover this, the judge will not look favorably on you when dividing assets. It is better to negotiate with your spouse rather than losing an asset because you tried to conceal it from your spouse and the court.
  • Agree to Sell the Item – If you and your spouse cannot agree who should have possession of an item, you may be able to agree to sell the item and divide the proceeds.
  • Check on Retirement Plans – Some retirement plans may not allow you to divide the assets without a court order. Research any retirement plan to determine the terms of the agreement before discussing property division.
  • Retain a Mediator – If you and your spouse cannot agree on property division issues, a mediator may be a more cost-effective and satisfying way to settle your differences as opposed to litigating property division and allowing a judge to make the decision for you.

Benefits and Advantages Of An Uncontested Divorce

The most obvious advantages of an uncontested divorce are the cost and the emotional impact on the parties. Contested divorces are more time-consuming and much more costly than uncontested divorces because attorneys must spend a greater deal of time trying to negotiate a settlement or prepare for a trial. Most attorneys bill by the hour; therefore, each minute they spend on your divorce case increases the bill. In addition to the attorney fees, contested divorces often have other costs such as deposition fees, expert witness fees, fees for private investigators, additional copy and mailing fees, and mediation costs that the party must pay. In an uncontested divorce, the additional fees can be avoided and the attorney fees will be less because the attorney spends less time on the case.

The other benefit of an uncontested divorce is the emotional aspect. In a contested divorce, parties are usually angry at each other and argue each issue. This continuous battle results in more stress, a higher level of anxiety, and more fear of what a judge will ultimately decide. In uncontested divorces, the parties may be hurt and there may be some anger or frustration; however, the parties are able to put those emotions aside to come to an agreement to end the marriage on their terms, not by a judge’s decision, so they can move on with their lives. An uncontested divorce takes much less time to complete compared to a contested divorce allowing the parties to begin the healing process much sooner than parties involved in a contested divorce.

Disadvantages Of An Uncontested Divorce

advantages vs. disadvantagesEven though an uncontested divorce may seem to be the best possible way to end a marriage, an uncontested divorce is not always in the person’s best interest. In complex cases or cases where the parties have so much animosity toward one another, an uncontested divorce may not work. For example, if the couple has substantial assets and either spouse is questioning what assets are considered marital property and should be divided between the parties, an uncontested divorce does not address that issue. You do not have the same level of dispute resolution in an uncontested divorce as you do in a divorce that is being tried in court.

In some states, a couple must meet very specific requirements in order to be eligible for an uncontested divorce. Because lawmakers in some states favor a couple reconciling as opposed to divorcing, the divorce laws have been written in a way to make it more difficult for a couple to end the marriage quickly through an uncontested divorce process. You must check your specific state’s laws in order to determine if you are eligible for an uncontested divorce.

Do We Need An Attorney If We Want An Uncontested Divorce?

divorce agreementSome states require that an attorney file the paperwork with the court while other states allow the spouses to file the paperwork with the court to obtain an uncontested divorce. Even in states that allow parties to file their own paperwork to obtain an uncontested divorce, it is always in your best interest to consult with an experienced divorce attorney before proceeding with any legal action. This is especially true if your spouse has consulted with or retained an attorney.

Divorce laws can be complex and confusing; therefore, it is easy for someone without legal knowledge to make a mistake. Courts are adamant about not giving legal advice to parties. The court staff may tell you how much it costs to file the forms or how many copies of the forms you must present for filing but they will not give you guidance on how to fill out the forms or what to ask for when filing for an uncontested divorce.

Hiring an attorney to assist you with an uncontested a divorce may avoid problems as well as make the process much less stressful for you. Your attorney may bring up issues that you have not considered and that are very important for your future. Furthermore, the attorney is responsible for completing the correct forms, filing the forms with the court, and making sure that each requirement is met for your divorce to be legal. The last thing you want to do is go through the effort of filing an uncontested divorce to discover that you made a mistake and your divorce is not granted. Unless you are prepared to research divorce laws within your state and take full responsibility for adhering to those laws, you should consult with a divorce attorney before proceeding with an uncontested divorce.

True No-Fault Divorce States

In a true no-fault divorce state, the courts do not permit parties to claim “fault” on behalf of the other party as a reason for the divorce. It is simply enough that the spouses (or only one of the spouses) no longer desire to be married to obtain a divorce. The following states are considered “true no-fault” divorce states because parties only have the no-fault option for a divorce.

  • Arizona
  • California
  • Colorado
  • District of Columbia
  • Florida
  • Hawaii
  • Indiana
  • Iowa
  • Kansas
  • Kentucky
  • Louisiana
  • Michigan
  • Minnesota
  • Missouri
  • Montana
  • Nebraska
  • Nevada
  • Oregon
  • Washington
  • Wisconsin
  • Wyoming

States Requiring Fault Grounds for a Divorce

Likewise, several states require grounds for a divorce. The states below do not have a no-fault divorce option.

  • Arkansas
  • Maryland
  • New Jersey
  • New York
  • North Carolina
  • South Carolina
  • Vermont
  • Virginia

States That Have Both Fault and No-Fault Divorces

Some states have provisions for both fault and no-fault divorces. Those states include:

  • Alabama
  • Alaska
  • Connecticut
  • Delaware
  • Georgia
  • Idaho
  • Illinois
  • Maine
  • Massachusetts
  • Mississippi
  • New Hampshire
  • New Mexico
  • North Dakota
  • Ohio
  • Oklahoma
  • Pennsylvania
  • Rhode Island
  • South Dakota
  • Tennessee
  • Texas
  • Utah
  • West Virginia

Divorce on the Grounds of Legal Separation

In some states that require fault for a divorce, and even in some no-fault states, couples can obtain a divorce if they have been living separate and part for a certain period of time. Those states include:

  • Alabama – 2 years
  • Arkansas – 18 months
  • Connecticut – 18 months (must also allege incompatibility)
  • District of Columbia – 6 months
  • Hawaii – 2 years
  • Idaho - 5 years
  • Illinois – 2 years (Must allege irretrievable breakdown and separation for no-fault; if both parties consent, two years may be reduced to six months.)
  • Louisiana – 180 days
  • Nevada – 1 year
  • New Jersey – 18 months
  • New York – 1 year
  • North Carolina – 1 year
  • Ohio – 1 year
  • Pennsylvania – 2 years
  • Rhode Island – 3 years
  • South Carolina – 1 year
  • Tennessee – 2 years (only allowed if there are no children)
  • Texas – 3 years
  • Utah – 3 years
  • Vermont – 6 months
  • Virginia – 1 year (can be reduced to 6 months if there are no children)
  • West Virginia – 1 year

Joint Petition of Dissolution of Marriage States

Some states allow parties to file a joint petition to dissolve the marriage. Those states include:

  • Montana
  • Illinois (only used in simplified divorce proceedings)
  • California (only used in simplified divorce proceedings)
  • Florida (only used in simplified divorce proceedings)
  • Ohio

A simplified divorce proceeding is a much easier and less-costly way of obtaining a divorce, however, each state has very specific laws and requirements in order to qualify for the simplified divorce proceeding. You must check with the clerk of court in your state to determine if you meet all of the requirements for a simplified divorce.

 

DISCLAIMER:

Jack W. Carney-DeBord is licensed and admitted to the practice law in the State of Ohio-ONLY. Jack has no intention of soliciting clients in any state other than Ohio and nothing posted on this website should be viewed as any attempt to solicit or do business in ANY state other than the State of Ohio.

The content on this website is provided as general information only and is not legal advice. You should not act or refrain from acting based upon information provided in this site without first consulting legal counsel.

Use of this website does not create an attorney client relationship between you and Jack's Law Office.

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Comments 1

 
Guest - BlakemoreBaylor on Tuesday, 04 August 2015 03:36

Good review with valuable information.

Good review with valuable information.
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