On behalf of The Marks Law Firm, L.L.C. posted in Divorce on Friday, November 22, 2013
Every week we have clients call asking about an uncontested divorce or claiming they have an uncontested divorce. Though one would think the term “uncontested” would have an easy definition, it often gets confused with a “default” divorce or misunderstood as to the real nature of a “contested” issue.
When a person files for divorce, that person must serve the other spouse with the petition. Once service is complete, the other spouse has thirty days to answer the petition or risk going into default. Usually, parties that fail to answer have their cases placed on the “default and inquiry” docket. Should the other spouse fail to hire an attorney and answer, or simply fail to appear at the default and inquiry call docket, the court will set the case for a default hearing. If the other spouse again fails to show, the court will enter a default judgment based on all of the requests in the petition. A default judgment can be set aside in the future, but only under certain limited conditions or for a show of good cause and a meritorious defense. Allowing your case to default is never a wise idea.
But a default judgment is not an uncontested divorce. An uncontested divorce can proceed in one of two ways. First, the two parties agree to seek mediation and rely on the mediator to resolve issues and produce the final settlement agreement. In mediation, the parties have the option of seeking outside counsel, but are not required to do so. In the second scenario, the two parties both retain counsel and one files for divorce, the other answers, and the two proceed to reach a resolution quickly because they have essentially agreed to the key issues of property, custody and support.
The most common and the prototypical uncontested divorce involves two individuals who have no children, who have been married for a very short period of time and who have few assets. The reason this situation is uncontested is because the parties have nothing to contest – the marriage was too short to involve maintenance, no custody issues exist because they had no children, and they have no substantive assets over which to fight. At bottom, these two people, shortly after marrying, realized they made a mistake and simply want out.
Once a divorce involves a marriage of longer duration or custody of children, the likelihood of proceeding in a truly uncontested fashion diminishes quickly. Some couples may have entered a prenuptial agreement and wish to see it enforced; in this case, the matter is essentially uncontested, though if the parties have children the court must still independently evaluate the custody arrangement as in the best interest of the children.
At this point we can draw a more precise definition of an uncontested divorce – a divorce where the parties after filing commences will not disagree to any significant degree about the division of property, custody (if children are involved) and support. If the parties do significantly disagree, the process will be contested – it may end up in a settlement rather than a full trial before the court, but it will require extensive discovery and negotiation.
Individuals considering divorce and thinking an uncontested route could work for them should think carefully about the degree to which they actually agree about issues of property, custody and support. Do both individuals have true and complete knowledge of the other party’s financials? Have both individuals considered the ramifications of foregoing support or agreeing to a certain amount of maintenance? Have both individuals mapped out a parenting plan that meets each person’s expectations?
Before deciding or declaring “uncontested,” an individual seeking a divorce or recently served with a petition for dissolution should consult with an attorney and discuss in detail the facts of the individual case. Only after receiving counsel on the legal implications of your circumstances can you learn if proceeding in an uncontested fashion will serve or protect your interests.
If you have questions about an uncontested divorce, contact us – we can help.