If you are thinking about getting a divorce and want to make the process as simple as possible, read below for an overview of how to get an uncontested divorce. The article provides details on everything from the filing of legal forms to how to finalize your case as efficiently as possible.
What is an Uncontested Divorce
According to statistics, about 95 percent of all divorce cases in the US are now settled out-of-court. However, the definition of the term "uncontested divorce" is still not fully understood. For those who have not gone through the divorce process, it’s easy to think of divorce like it’s portrayed in the movies - dramatic litigation in the courtroom, lawyers in heated debates, and scandals being exposed.
However, in reality, the divorce process does not need to be so dramatic. If you and your spouse can agree on all or most of the terms of your case, including how you’ll split up your assets and debts, how you’ll handle custody of any kids, and whether support will be paid (and how much), you and your spouse can write up an agreement and ask the court to approve it, rather than having a judge decide your fate. When you decide the terms of your case, you can end your marriage without the bitter conflicts, drawn-out hearings, or expensive legal fees.
If you and your spouse are able to agree on your case, an uncontested or no-contest divorce is the best way to make the divorce process as simple and stress-free as possible.
The Difference Between a Contested and an Uncontested Divorce
As discussed above, an uncontested divorce is one where the spouses agree on the terms or issues involved in their case, and present the terms to the court in a settlement agreement for its approval.
Even if you and your spouse have some disagreements, you can proceed with an uncontested divorce if you are ultimately able to reach an agreement. It is only natural to have some hiccups while trying to negotiate with your ex-partner. It may be difficult to agree on everything right away. For instance, deciding how to share parental rights and liabilities, the amount and duration of alimony, and how marital assets should be divided out-of-court may take some back and forth and a lot of compromises. If you’re unable to work together to work through certain issues, you can even hire an attorney or mediator to help you so that you can stay out of court and keep costs and stress levels down.
Once you’ve agreed on all of the terms of your case, you can create a settlement agreement and submit it to the judge for review and approval of your case. Some states require that the parties appear in court to confirm that they want the divorce approved pursuant to the settlement agreement. However, in other states, as long as the parties file a settlement agreement and other required forms, they won’t have to step foot in court.
Since the spouses are working together to create an agreement rather than spending time arguing in court, uncontested divorces usually take less time and are less expensive than contested cases.
On the other hand, a contested divorce results when spouses are not able to agree on the terms of their divorce as discussed above, and need to litigate certain matters so that a judge can make determinations for them. Specifically, if spouses cannot reach an agreement, the court can make orders on property division, child custody, spousal support, child support, and attorney’s fees.
To start a divorce case, the filing spouse will file a divorce petition or complaint with the court. This initial document can include allegations against the other spouse and the terms that the filing spouse expects in the divorce. Then, the responding spouse will have a chance to respond to the case, and answer the petition. After the spouses have conducted discovery to obtain relevant information from each other, and exchanged financial information per the court’s rules, the court will usually set a trial.
At the trial each party will have a chance to argue their side and what they want out of the divorce. It is usually a good idea to hire attorneys if you plan on going to trial. The judge will hear the arguments by each party concerning each disputed issue and weigh the evidence and testimony in order to make decisions which will become part of the final decree of divorce.
Depending on the case and the number of controversial issues, multiple court appearances may be required. Not only do contested cases take a long time to resolve, but they are also very expensive and usually stressful, especially if minor children are involved.
Ever since uncontested or no-fault divorces have become accepted in the US, the courts have encouraged divorcing spouses to try to settle their differences out-of-court, using litigation as a last resort.
It is important to remember that the outcome of a divorce can affect many aspects of your future, especially if you have children, joint property, or a joint business. No matter what your circumstances, it’s a good idea to try to keep a cool head and to separate as amicably as possible so that the outcome is most beneficial for everyone involved.
An Overview of the Uncontested Divorce Process - How does it work?
The Divorce Petition
Regardless of the specifics of each case, the uncontested divorce procedure always starts with one spouse filing initial petition documents with their local court. Depending on your filing state, the initial document may be called a Petition for Divorce, Complaint, or Joint Petition.
The spouse who is filing the divorce, who’s either called the Petitioner or the Plaintiff, depending on the state, will fill out and sign the divorce petition. The petition informs the court of the filing spouse’s desire to terminate the marriage and includes general information, including the parties’ names, the date of marriage, and date of separation. It also states the filing spouse’s requests as to how finances, property, debt, child custody, and other terms of the divorce should be handled.
In addition, the petition form includes the grounds for the divorce, or the reason why the marriage ended.
Grounds For an Uncontested Divorce
In general, there are two types of grounds for divorce - fault and no-fault.
If one spouse was at fault for the marriage ending, and the filing spouse wants to assign blame, he or she can include a fault based ground for divorce in the divorce petition. The fault-based grounds vary by state, but usually include actions such as adultery, incompetence, domestic violence, and habitual drunkenness or drug abuse.
When filing a fault based divorce, the court will require the parties to provide evidence and sometimes witnesses to prove what went wrong. So, choosing to file a divorce based on fault will usually make the divorce case a contested one.
No-fault grounds for divorce exist to give couples a more civil option to end their marriage - no one is blamed for the divorce and no wrongdoing needs to be proven in court. The most common no-fault ground is "irretrievable breakdown of the marriage," also known as "irreconcilable differences" or something similar, depending on the state. It basically implies that the spouses don’t get along anymore and there is no hope for reconciliation.
A no-fault divorce can end up being uncontested or contested, depending on how the responding spouse responds to the case, and whether the parties can agree on all of the issues in the divorce. All states recognize no-fault grounds, and a majority of couples prefer this option.
Where to File an Uncontested Divorce
In order to file for divorce in a particular state, a couple must meet the state's residency requirements. Every state has different rules for how long a couple must have lived in the state before the court can have jurisdiction over the divorce proceedings. Some states require that the filing spouse live in the state for 6 weeks before filing a divorce, and other states require that the spouse live there for at least 1 year. You should be able to find your state’s residency requirements on your local court’s website, or in your state’s Family Law Code.
Please note that your divorce petition will be filed in the state where either you or your spouse resides, not where the marriage occurred.
Once you are clear on the residency requirements for your state and prepare the required paperwork, it is time to file your divorce case.
The spouse who wants to start the divorce will file the initial forms with the County Clerk’s Office in the county where either party lives.
In general, only the filing spouse needs to go to court to file the divorce case. The responding spouse is not usually required to appear in court to begin the case, unless your state lets both spouses file the divorce as co-petitioners. If you are going to file a case as co-petitioners, the court may require that both parties be present to file the case.
How to File an Uncontested Divorce
Uncontested Divorce Forms
The uncontested divorce papers are similar if not identical to the forms required to complete a contested case. Contested cases usually have more forms because the spouses will most likely be going to court for hearings or a trial. The package of forms that a couple will need to file to get a divorce depends on many things, including:
the state/county of residence.
the type of service used for the court papers.
whether the spouses have minor children.
whether the spouses have marital property.
whether either party is going to seek alimony.
whether the case is addressed within the framework of the Military Spouses Residency Relief Act.
whether the parties are going to ask the court for a fee waiver.
and any other unique circumstances of the case.
The filing spouse will fill out the initial divorce forms, which include the petition, the summons, and usually a case specific cover sheet. These forms vary by state and county.
Please note that the templates of divorce forms, filing rules, and deadlines vary from state to state, so the exact forms cannot be specifically identified in this article.
Once the initial forms are filed with the court, and the court filing fees are paid, the court will stamp the documents as received and issue a case number.
After the documents have been filed with the court, the filing spouse is required to serve the documents on the other spouse, who is called either the respondent or the defendant, to provide notice of the divorce case. Service rules vary, but service can usually be done by a process server or by someone who is not involved in the case, over the age of 21. Some states allow the spouses to file for divorce jointly as co-petitioners so that they can skip the "service of process" stage to get an uncontested divorce.
Property Division
In an uncontested divorce, the spouses can divide their property and assets at their own discretion by putting the agreed-upon terms into a settlement agreement. The judge will review the agreement and will typically approve the agreement, and the divorce, if it’s fair and does not violate case law.
If the parties cannot determine how to divide property and debts, they can seek the assistance of a mediator, or make a motion with the court to get the judge’s assistance.
The way property is divided depends on your state. The court will divide assets and debts following one of two basic models: community property or equitable distribution.
The majority of US states follow equitable distribution laws, while the other 9 states are community property states.
The main difference between community property and equitable distribution is that in community property states, there is usually a 50/50 split of all property acquired during the marriage. In contrast, in equitable distribution states, property is divided in a fair way, but this does not necessarily mean that the division is equal.
Child-related issues in an uncontested divorce
Negotiating child-related matters, such as legal and physical custody, a custody schedule, visitation hours, and child support can be challenging. If you and your spouse are able to come to an agreement on these issues, it is possible to get a no-contest divorce with children. Once you reach an agreement on custody, you can include the details of child custody in a mutual agreement which you can file with the court.
To allocate parental rights and liabilities and avoid litigation, spouses are often ordered to attend mediation sessions or parenting classes. These measures help parents to create a parenting plan which will suit both sides and, most importantly, meet the child’s best interests.
All courts across the US are guided by the best interests of the child, no matter whether the judge decides custody at their discretion or the spouses' come up with their own arrangement. To determine what type of custody arrangement would be the best for a child in a specific divorce case, the court typically considers the parents' preferences, the parent-child relationships, the child's adjustment to the habitual home environment, the parents' ability to communicate and cooperate for the sake of the child, and more.
Given the above, divorce with children typically involves more paperwork issues and may require a bit more time than a divorce with no kids. Nevertheless, if the parents are ready to negotiate, an uncontested divorce is the preferable option. Resolving child-related disputes out-of-court facilitates a smoother relationship between the parents after separation, which is especially crucial if the spouses are going to share time and decision-making regarding their children.
The Settlement Agreement and Final Forms
For an uncontested divorce, the spouses are also required to provide the court with a signed and notarized settlement agreement. They can write it up in advance or after filing the petition. Different states have different divorce timeline requirements.
After the court gets all the necessary divorce forms (which vary depending on the state, county, and unique circumstances of each case) and the agreement, the final court hearing can be scheduled. How soon the final hearing can be scheduled will depend on the rules of the state. Some states require a mandatory waiting period between filing the petition and the final hearing, while others do not.
An uncontested divorce hearing is typically brief. One or both spouses may be obliged to attend it. The judge will review the couple's agreements and may ask the parties some questions about it to verify its contents and to make sure that the agreement is fair to both parties and meets the requirements of the state family law. After that, a divorce decree can be issued, officially finalizing the divorce.
Pros and Cons of an Amicable Divorce
As with anything, there are pros and cons to filing the different types of divorces. An uncontested divorce can be considered to be a better way to terminate your marriage because it is typically much cheaper than a contested divorce and takes less time, even including the mandatory waiting period that some states require.
An advantage of getting an uncontested divorce is that it is less expensive than fighting things out in court. Spouses who can go through the process amicably can save money on attorney’s fees. Even if a couple does want to hire an attorney to help, attorneys will sometimes take uncontested divorces on a flat fee basis. Other options if a couple needs assistance with their case would be to hire a mediator or seek the assistance of a therapist or divorce coach. There is also the option of choosing an online divorce service that will complete your paperwork for you. This saves money and time.
When an Uncontested Divorce is Not for You
Sometimes a couple is simply unable or unwilling to cooperate or to reach an agreement on their divorce. In that case, an uncontested divorce will not be possible. If spouses need the court or judge to hear their side and make a ruling, litigation might be inevitable.
Sometimes there are situations where the safety of one of the parties or the children is an issue. In such a case, an uncontested divorce is not possible or the best option. Sometimes, it is impossible to move forward with a divorce without using a lawyer and litigation to fight for justice.
Do I Need a Lawyer for an Uncontested Divorce?
The short answer is no. It is entirely possible and doable to complete your divorce without a lawyer. However, if you have a more complex case or want extra assistance with a professional, you may want to contact an attorney to consult with.
Spouses have the right to represent themselves in court. If you want a do-it-yourself divorce and represent yourself in the case, it’s called pro se or pro per.
There is a perception that DIY divorce is only acceptable for couples with no children and no marital property who were only married for a short time. But this is not true. If you and your spouse are able to cooperate and work together to file your divorce case and are comfortable working with the divorce forms and procedure, a lawyer is not necessary.
How Long Does an Uncontested Divorce Take?
Since each divorce case is unique, it is hard to predict how long a divorce will take from start to completion. In addition, every state has different rules regarding residency requirements and waiting periods which affect the timeline.
That said, if both parties agree on the essential terms of their case and are able to have an amicable divorce, the overall procedure will usually take between 3 - 6 months, which is less than half the time of the average contested divorce.
How Much Does an Uncontested Divorce Cost?
The cost of any divorce across the US starts with a court filing fee. This is a payment for the court's services which is charged at the same time you file the petition. The court filing fee varies from state to state and from county to county but is mandatory for all plaintiffs except those who are qualified for a fee waiver due to indigency.
The rest of the potential expenses are hard to predict. Nevertheless, if both parties agree not to contest the case, the divorce is typically much more affordable than a contested proceeding. Lawyer fees usually make up the largest share of the cost for a contested divorce. They charge an average rate of about $275 per hour, and over the course of a long contested case, that can add up to tens of thousands of dollars. In contrast, for an uncontested divorce, attorney fees average between $3,000 - $3,500 per case.
Moreover, an amicable divorce process can be handled without a lawyer at all. Even if the spouses resort to some help with their settlement agreement or legal paperwork, the costs of these services are usually significantly lower.
Uncontested Divorce Online
If you and your spouse want to file an uncontested divorce and want assistance without the cost of hiring an attorney, online divorce may be a perfect option. Online divorce platforms help you to prepare all of the necessary divorce documents, without a lawyer, and file them with the court on your behalf.
By taking advantage of an online divorce paperwork drafting service, a couple can get their divorce paperwork completed quickly and more easily than if they were to do it themselves. And even though some lawyers provide similar services for uncontested cases, online services are generally cheaper and more convenient for the users.
Get help with divorce: Texas Uncontested Divorce
Frequently Asked Questions
How to start an uncontested divorce?
If the parties have agreed on the essential terms of their separation, including financial issues, child custody, and property distribution, they can file an uncontested case.
The spouse who wants a divorce must prepare and file the initial divorce forms with the court and then serve the other spouse with copies of the submitted documents. During the mandatory waiting period, which varies by state and is established by family law, the couple can file their settlement agreement, which contains all of the agreed-upon terms of their case. The court will schedule a final hearing to review the paperwork. Some states require that the parties appear in court, but others do not. After the judge considers the submitted legal forms and settlement agreement, the divorce can be granted.
What are the steps in an uncontested divorce?
To begin your case, the filing spouse must prepare and submit the initial divorce forms with the court. Once received, the clerk will assign a case number and return the copies.
The filing spouse will then need to serve the other spouse with a copy of the divorce documents to notify that spouse of the divorce case.
The spouses will then need to work together to complete a settlement agreement. This agreement will contain all of the terms of their divorce case. Once all of the required forms, along with the settlement agreement, are filed, the court will review everything to ensure the terms are fair and comply with state law. Most states have a waiting period before scheduling the final hearing and finalizing the divorce.
What to expect in an uncontested divorce hearing?
An uncontested divorce hearing is typically a brief formal procedure. Depending on the state, one or both spouses may have to attend the hearing and give testimony about the facts pointed out in the petition.
During the final hearing of an uncontested divorce, the judge does not make any decisions. They just go over the couple's agreement and review the details with the spouses. The judge determines if the arrangement is fair and, if so, issues a divorce decree.
Where can I get uncontested divorce papers?
Depending on the state and county, the plaintiff typically obtains the necessary legal forms at the Clerk’s Office or the local law library. Some state websites also provide specially-designed divorce self-help guides with legal form packages based on your case (with or without children, contested or uncontested, etc.).
Nevertheless, it is worth noting that such basic form packages do not always meet all the requirements of a particular divorce case. So, often, the most convenient way to get divorce papers is to use an online divorce service. Usually, such websites provide the forms based on the circumstances of a specific divorce and assist the customer with completing or even filing them.
Do I have to go to court for an uncontested divorce?
Each divorce case is unique, and a lot depends on the state where the lawsuit is filed and the personal circumstances of the couple. Sometimes, the spouses are not required to go to the court after the plaintiff has filed the documents, and the judgment can be sent by mail. Other times, the plaintiff or both parties must attend a brief informal hearing to obtain a divorce decree.
What happens after you file for an uncontested divorce?
After filing for divorce, the plaintiff usually has to notify the other spouse about the case, by serving him or her with copies of the divorce papers. If the defendant doesn't dispute any of the petition’s provisions or the spouses create a settlement agreement, the divorce is considered uncontested.
The family law of the state determines the rest of the divorce timeline. A final hearing may be scheduled immediately in some states, while others require a mandatory waiting period before a divorce can be granted.