Chapter 3 When You Can Agree: Uncontested Divorce

• Library: Nolo's Essential Guide to Divorce (Nolo) (2020 Ed.)

CHAPTER 3 When You Can Agree: Uncontested Divorce

Basics of the Uncontested Divorce

Summary Dissolution for Short-Term Marriages

Default Divorce

If You Serve Your Spouse and There's No Response

By Agreement

If Your Spouse Is Missing

Preparing and Filing Legal Papers

Will You Need Help?

How to Start the Divorce Proceeding

Which Spouse Files for Divorce?

Where to File

Finding Forms

How to Fill Out Court Papers

Preparing Court Documents From Scratch

Filing the Papers

Filing Fees

Serving Papers

How the Other Spouse Can Respond

Negotiating a Settlement and Preparing a Marital Settlement Agreement

How to Work Toward an Agreement

The Big Issues

Finalizing Your Uncontested Divorce

Although we hear about people whose knock-down, drag-out divorce cases last for years and tear their families apart, most people manage to part ways with much less conflict. That doesn't mean that their divorces are free from emotional turmoil or disagreement—only that they figure out a way to move through all of that and complete the legal part of their divorces with some level of cooperation. In other words, they take the high road.

This chapter goes into the nuts and bolts of the uncontested divorce—a divorce in which you and your spouse figure out how to handle the big issues (property, support, and custody) yourselves, instead of fighting it out in front of a judge. It will help you figure out what you'll actually need to do from the beginning of your uncontested divorce to the end.

Even if you're convinced that your divorce will be full of acrimony and conflict, please read about uncontested divorce. It's important to see that a divorce doesn't have to be that way, and you can also learn some useful techniques to minimize conflict. If you can manage to keep the process relatively civil, it will have huge long-term benefits for you, for your ex-spouse, and especially for your children.

Kinds of Uncontested Divorce
Kind of divorce	What It Is; How It Works
Summary divorce	A streamlined procedure, this is for couples who haven't been married long and don't have children or much property.
Default divorce	One spouse files for divorce, and the other doesn't file an official response.
Mediated divorce	A couple gets the help of a trained neutral mediator to reach agreements about financial matters and child custody.
Collaborative divorce	The divorcing spouses hire lawyers and everyone pledges to resolve property, support, and custody issues out of court; spouses negotiate directly.
Lawyer-negotiated divorce	The divorcing spouses hire lawyers with the intention of resolving issues out of court, with the lawyers negotiating on behalf of the spouses.

Basics of the Uncontested Divorce

You can file for an uncontested divorce if you and your spouse:

• both want to get divorced
• agree on how you will divide your property and debts, and
• can settle on the terms of a parenting agreement.

An uncontested divorce doesn't mean you'll agree on everything right from the start. It just means you'll decide the issues in your divorce yourselves, possibly with the help of a mediator or consulting lawyer or both, but without needing to ask a judge to decide. Once you've made the decisions, getting your legal divorce will mostly involve paperwork. Depending on where you live, you may not need to go to court at all; you may be able to do everything by mail.

The three steps in getting an uncontested divorce are:

1. File the initial papers to get the proceedings in motion, and deliver copies to ("serve") your spouse. In most states, you will also have to exchange financial documents.
2. Negotiate with your spouse and decide how to divide up property and how to handle support, custody, and visitation.
3. Complete and file the final papers (including your marital settlement agreement, which sets out all your property, support, and custody decisions) to make your divorce official and get a court's approval of the agreements you've made.

The steps almost always go in that order, although sometimes people agree about property, debts, and child custody before they even start the paperwork.

You might want to have a lawyer look over your marital settlement agreement before you finalize your divorce, if you've done the rest of the divorce process on your own.

Summary Dissolution for Short-Term Marriages

If you've been married no more than a few years and don't have a lot of entanglements, you can use a streamlined procedure for getting divorced. Typical requirements for a summary (simplified) divorce, which you and your spouse must file jointly, include:

• You have been married for a relatively short time, usually less than five years (though a few states allow summary divorce when you've been married as long as eight or ten years).
• You both agree to give up any right to spousal support.
• There are no children of the marriage (if either you or your spouse has children from another marriage, you can still do a summary divorce).
• You don't own a house, either together or separately, and neither of you has a lease on any property that's for a term longer than a year from the time you're filing.
• You don't have significant assets, either jointly or separately owned (generally this means in the $25,000 to $30,000 range).
• You don't have significant debt (in most states, that means more than about $5,000 to $15,000).

Some states may have different requirements—for example, a minimum length of time you must be separated before you file for summary divorce. Usually, a summary divorce involves filing only one or two fill-in-the-blanks forms that you can get from the court, paying a filing fee, waiting a certain period of time—how long depends on your state, but varies from one month to a year—and then asking the court to make an order granting the divorce. You're rarely required to make a court appearance, and you can probably prepare the paperwork yourself, without a lawyer.

Not all states offer a summary divorce option. If you're interested, your first step is to figure out whether your state allows it, and if it does, whether you meet the requirements. Chapter 16 lists ways to get information about divorce laws and how to do research on your own. If you find you are a candidate for a summary dissolution, talk to your spouse about it—and if the two of you agree, see the section below called "Preparing and Filing Legal Papers."

Summary Divorce, Step by Step 1. Agree on how you'll divide your property and debts.
2. File divorce forms with the local family court.
3. Wait a few months (time period depends on state law).
4. Request final divorce decree from the court.

Default Divorce

A default divorce is another form of uncontested divorce. It's uncontested because one spouse never even files an official response with the court—everything gets done based on the filing spouse's paperwork. If you file for divorce and your spouse doesn't respond—that is, doesn't file any papers with the court—you can get a default divorce.

You might also use default divorce procedures if you and your spouse agree to do it that way and your state allows it. And you'd have to get a default divorce if you haven't been able to find out where your spouse is, even after making a genuine effort.

If You Serve Your Spouse and There's No Response

If you prepare the paperwork to start your divorce, file it with the court, and deliver it to your spouse (all of which is explained below), and your spouse fails to respond or file any paperwork within the required time period, you can try to get a default divorce. (This is called "taking the default" of your spouse.) However, it's a good idea to get in touch with your spouse to find out whether the deadline has simply been forgotten. Although, technically, you can seek a default divorce as soon as the time limit passes without a response, your spouse could also come back and try to get the default invalidated later by saying that the delivery wasn't proper or there was a good excuse for missing the deadline.

It's better to give your spouse every chance to respond—even write a reminder letter, keeping a copy to show the court if you do ask for a default. If your spouse never does respond, get the default paperwork and complete the divorce yourself.

By Agreement

In some states, you can agree with your spouse that you'll have the divorce entered by default. In that case, one of you will file for divorce, and the other will simply not file any responsive papers. The person who filed would then go ahead and ask the court to sign the final judgment of divorce, the document that ends your marriage. (See "Preparing and Filing Legal Papers" and "How the Other Spouse Can Respond," below, for more about how this would work.)

The main reason for agreeing on a default divorce, instead of an uncontested divorce where both spouses appear, is if one spouse is agreeable to getting divorced and to dividing property fairly, but doesn't want to be involved in the court process or do any paperwork. In that case, the filing spouse can take care of the details and the other can just sit back and let it happen. You may also save on filing fees—the defaulting spouse doesn't have to pay the fee for filing responsive papers. (The only exception to this is if your divorce is by default but you have a settlement agreement signed by both of you—then the nonfiling spouse may be required to pay a fee.) These local nuances are one reason to consult an attorney at an early stage.

If Your Spouse Is Missing

Sometimes, married couples drift apart without ever getting a divorce—especially if they marry young and then grow into different lives, or if the marriage was one of convenience. Neither person really cares that they don't know exactly where the other is—until someone starts thinking about marrying again and realizes that there's some paperwork that needs taking care of.

If you don't know where your spouse is...