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If you are reading this guide, chances are good that you and your spouse have amicably agreed to end your marriage. Even if that is not true (because only one of you wants a divorce), you can still end your marriage without resorting to high-priced litigators or underhanded litigation tactics.
In fact, most divorces are resolved with little or no contest and a growing number of divorces across the nation are handled without lawyer involvement. In California, about 80 percent of family law litigants represent themselves in court.
The numbers of pro se litigants are growing in other states as well with several counties in New Hampshire, Wisconsin and Florida reporting that as many as 70 percent of family law cases involve at least one pro se litigant.
This guide introduces you to uncontested divorce and the general process involved in obtaining one. Additional resources on how to obtain an uncontested divorce can be found under the Resources section of this guide. If you are seeking a contested divorce (meaning you and your spouse disagree about the terms of the divorce), we recommend you hire an attorney.
If you and your spouse know you want to divorce and believe you can resolve the big divorce-related issues of property, child custody and support without court intervention, you can seek an uncontested divorce. A divorce is classified as uncontested when both parties agree on three central issues:
- their desire to divorce;
- how they will resolve child custody and support issues; and
- how they will separate property and pay their debts.
Just because a divorce is uncontested does not necessarily mean you and your spouse will not argue. Rather, in an uncontested divorce, you and your spouse must successfully settle all disputes concerning the issues listed above outside of a courtroom. A contested divorce, in contrast, will require court intervention and in a few cases may require a trial (although as many as 80 percent of cases settle beforehand).
Before the 1970s, most divorces were granted because a spouse was found to be "at fault"—for adultery or habitual drunkenness, for example. One spouse had to be proven "guilty" for the failure of the marriage. The "innocent" spouse was then awarded the divorce.
The fault system caused much dissatisfaction because it required placing blame. Couples who wanted to dissolve their marriage without blaming each other at times resorted to fabricating misconduct and committing perjury. For others, the requirement of fault gave rise to ugly divorce battles in the courtroom.
Unlike fault-based divorce, "no-fault" divorce does not require a finding of fault on the part of one or the other spouse. The couple may claim "irreconcilable differences" or an "irremediable breakdown" of the marriage. In fact, thanks to no-fault divorce laws, you can proceed with a divorce in most states even if your spouse doesn't want one. You testify that your marriage has broken down and there is no hope of reconciliation.
It is now possible to get a no-fault divorce anywhere in the United States. In 15 states, this is the only method available. In the rest, both no-fault and fault-based divorces are available. In these states, you might not be able to use fault as the reason for getting your divorce, but it may affect the judge's decision about the amount of alimony granted or the percentage split of the spouses' possessions.
If you're seeking an uncontested divorce, there's not much reason to assign "fault" unless, for example, you don't want to wait out the required separation period. In New York, couples must live separately for an entire year before they can file for an uncontested divorce. If they file for a fault-based divorce, they do not have to live separately before filing.
While not all divorces will be solved without disagreement, there are many factors which make an uncontested divorce a desirable decision. They include:
Civility. Couples who agree to divorce are usually more willing to work issues out. They are less likely to be motivated by anger or revenge and more likely to cooperate in finding an agreement that is lasting and fair.
Simplicity. If a divorce is uncontested, there is no need for a trial. There is, in most states, though, a final court hearing to make sure both sides understand the agreement and to make the divorce official. The absence of a trial, nonetheless, dramatically reduces the need for an attorney. Many who enter into an uncontested divorce choose to go pro se.
Speed. Uncontested divorces proceed more quickly than contested cases. With no need for a trial, these cases can typically be resolved in less than six months—versus two years or more for litigation and even longer for protracted litigation. The speedy nature of the uncontested process allows both parties to quickly move on with their lives. In some states, if the marriage was very short and neither children nor shared property exist, a summary divorce can be granted through the mail.
Cost. Uncontested divorces are much cheaper than contested divorces. Attorneys typically charge a flat fee rate to handle a divorce—anywhere from $100 to $1,200, depending on the extent of aid needed and whether children, support or property issues exist. Contested divorces can cost $20,000 and in many cases can go well above $50,000 as lawyers spend months preparing for trial (taking depositions, conducting private investigations, getting psychological evaluations and more).
Yes you can. If both parties are in complete agreement, there are self-help resources available to help you successfully represent yourself in court. State-specific guides on divorce, court-based self-help centers and self-help Web sites will provide the information, forms and instructions you need. In some states, you can hire an independent paralegal to help you with your divorce. Independent paralegals, also known as legal document assistants (LDAs) and legal document preparers (LDPs) are nonlawyers who, in states like California and Arizona, may lawfully fill out, file, and in other ways prepare legal documents on behalf of pro se litigants. Currently, California and Arizona are pioneering the drive to recognize and regulate the independent paralegal industry in an effort to increase access to justice for their citizens and residents.
While in most cases you can represent yourself without issue, you should consider hiring an attorney if you and your spouse start fighting over property or custody issues, or if there is a history of abuse in your relationship.
If you are in full agreement with your spouse as to the terms of the divorce, you should be able to remain pro se. However, keep in mind that your spouse's attorney is ultimately working for your spouse's best interests—not yours. Most experts recommend that if your spouse hires an attorney, you should at least consult a separate attorney to make sure the agreement is fair. Whether or not you consult an attorney, make sure you fully understand your divorce agreement before signing it.
If you choose to represent yourself, contact the clerk at your divorce court's office to obtain additional information and the necessary paperwork. Keep in mind, however, that the clerk is not an attorney and cannot help you complete the forms. You can also utilize the self-help books and Web sites listed below.
Should you require more help than the clerk or self-help products can provide, look for an attorney who can coach you through the process on an hourly fee basis. Under this arrangement, the attorney will provide guidance and direction but will not completely take over the case or present it for you.
Divorce law varies from state to state. It is a good idea to check state-specific divorce guides or online information through your state's family law court Web site about the process in your state. Nevertheless, there is a basic procedure which most systems follow.
Some couples decide to write up a marital separation agreement (which outlines how property, child custody and support issues will be handled) before they officially file for divorce. Others, as noted below, wait until after they have filed the necessary paperwork to start the divorce.
In most states, before you can file for divorce, you must have lived in the state for a set period of time—typically six weeks to a year. If you meet the residency requirements, and both you and your spouse agree to an uncontested divorce, the next step is for one of you to file a petition, or complaint, most commonly known as a Petition for Dissolution of Marriage.
Even though both parties agree to get divorced (or even if only one spouse seeks a divorce), only one side need "ask" for the divorce. This person, then, becomes the plaintiff [or petitioner]. The Petition for Dissolution of Marriage typically contains basic information about you and your spouse-where you live, when you were married, if you have any children, whether or not you both are employed, and a basic summary of the property you own. You will also state the grounds (for example, fault or no-fault) for the divorce. This frequently is done through a check-off box on the form. For an uncontested divorce, you should check the "no-fault" box. Upon completion, the petition must be filed at the divorce court clerk's office in your jurisdiction, typically where either one or both parties live. This can often be done through the mail, although some states require the petition to be filed in person.
After you file your petition with the court, you need to let your spouse know. This is done by "serving papers" on your spouse. You can serve your papers in several different ways. Ask the court clerk which method(s) of service the court prefers. In most states, mailing the papers by registered or certified mail and getting a return receipt signed by your spouse suffices. Some states require you to try this method first. Generally, the clerk does the mailing, and you pay the postage and handling costs when you file for the divorce. It's almost always acceptable to have a law officer serve your papers, although an officer is permitted to do so only within his or her jurisdiction, and the officer generally charges a small fee. You can also hire a professional process-server. Some states even permit service by a court-approved "disinterested adult"—anyone of legal age who isn't a party to the suit. With any method of service, you'll need proof that your spouse received the forms, such as a registered mail receipt signed by your spouse or a signed statement by the server that the notice was served. Again, check with the court clerk to find out what is required.
Once your spouse is served, he or she will be given an opportunity by the court to file an Answer, or Response, to the petition. The answer may state that the responding party agrees with the petition for divorce. Couples contemplating an uncontested divorce can jointly sign an Appearance, Consent & Waiver form which informs the court that both sides agree the divorce is uncontested and allows the judge to approve their agreement without the need for a hearing. By signing this form, the respondent is basically waiving his or her right to dispute the facts of the marital separation agreement, to motion for a new trial, to notice of entry of final judgment or decree or to appeal.
What if my spouse does not respond to my petition? If your spouse does not provide a formal, timely response to your petition after being successfully served, you may request a default finding from the judge. A default finding is a formal recognition that your spouse, the respondent, has not answered the petition.
If, however, your spouse is missing, the court will require you to make every effort to locate him or her before granting a default divorce. You will have to prove (so keep meticulous records), that you have tried your spouse's last known address, have "Googled" his or her name on the Internet for information, have contacted relatives and mutual friends and have even checked with the military. The law typically prevents entry of a default finding if your spouse is in the military. If you're interested in divorcing a military spouse, special rules apply. It's best to hire a lawyer.
If all reasonable attempts you have made to contact your spouse have failed, most states allow the publishing of the status of your divorce in the local newspaper of your spouse's last known address—especially if it's not been that long since your spouse was known to be living there. Your spouse then typically has 30 days to respond before a judge can grant a default.
If the court grants you a default finding, the divorce will continue according to the terms of the Petition for Dissolution of Marriage—although the court may not necessarily grant what you asked for if the judge deems it unfair.
In some states you and your spouse can agree in advance to seek a default divorce. This allows the spouse who doesn't want to bother with paperwork or be involved in courtroom proceedings to just step aside and let the process happen. It's only recommended, however, if you and your spouse have limited property and no children.
When discussing the terms of your divorce with your spouse, make sure you fully agree on all important issues. Anything not explicitly stated and documented by the court will not become legally binding and therefore cannot be enforced. Primary issues to discuss include: property division (residence, retirement benefits, bank accounts, stocks, mutual funds, annuities, automobiles, household items, etc.), spousal support, medical and life insurance, and any debts you may have. If children are involved, you must agree upon child custody and visitation, as well as alimony (which a court can grant even in childless divorces) and child support. Once you and your spouse are in complete agreement on the terms of the divorce, thus rendering it uncontested, you will prepare a settlement. If you do not agree, the court may recommend or require divorce mediation to resolve any outstanding disputes.
The completion of what is referred to either as a Marital Settlement Agreement or a Proposed Settlement Agreement is your final step before the completion of your divorce. There are computer programs, do-it-yourself guide books and some paralegals who can help create a Marital Settlement Agreement. If either you or your spouse is using an attorney, that attorney will draft the settlement. The Marital Settlement Agreement will lay out, in great detail, the specific terms of your divorce agreement. These terms will become legally binding, so make sure that you read through the agreement carefully and agree with each portion. Both parties must sign the agreement before your divorce can be finalized in court.
Once the Marital Settlement Agreement is completed and is signed by both you and your spouse, you will present it to the court by filing it with the clerk. While courtroom procedures differ among states, in most cases the Marital Settlement Agreement will be introduced into evidence in court and the terms of the agreement will become the terms of your divorce decree. The judge in the vast majority of uncontested divorce cases will agree to the terms of your divorce, typically resulting in a 10 minute hearing. Once the judge agrees with the terms of the divorce, she will sign the divorce decree and your divorce will be official. The terms listed in the divorce decree will become legally binding and will be recorded as part of an uncontested divorce.
Nolo's Essential Guide to Divorce
By Emily Doskow
2006, Nolo. (400 pp.) $29.99
Summary: A comprehensive guide on getting a divorce, whether contested or uncontested. This guide stresses the importance of minimizing conflict, encourages the use of divorce mediation, and explains in easy-to-understand language, what to expect before, during and after a divorce. It also covers information on how to establish child custody, determine child support and figure out alimony issues. You can find state-by-state information on the grounds for divorce can be found in one of the book's appendices.
Divorce Yourself: The National No-Fault Divorce Kit with CD
By Daniel Sitarz
2005, Nova Publishing. (334 pp.) $39.95 (includes shipping)
Summary: Includes checklists, questionnaires, worksheets, and easy-to-use forms with step-by-step plain-English instruction. Divorce Yourself also provides a detailed explanation of the divorce laws of every state and Washington D.C. as well as a CD with forms in word processing format. Because laws vary and can be updated periodically, the guide advises you to check with your local courthouse to make sure you're getting the most up-to-date information.
Divorceinfo.com
Web site: www.divorceinfo.com
E-mail: lee@divorceinfo.com
Provides extensive information regarding the process of going through a divorce. The site has links to other sites answering questions about child custody, alimony, state-by-state variations and other divorce issues.
Divorce Central
Web site: www.divorcecentral.com
Contains information, links and bulletins designed to answer any divorce-related question.
Nolo
Web site: www.nolo.com
Contains information, links and bulletins designed to answer family law issues including divorce, custody and alimony.
Recently Separated
Web site: www.recentlyseparated.co.uk
Contains information, articles, and references on how to begin life after a
separation or divorce.
You can also look to HALT's Everyday Law Series articles, "Going it Alone in Court" and "Getting a Divorce," which provide further explanations of pro se litigation and various divorce processes. You can view these articles online at www.halt.org or request them by emailing halt@halt.org or calling 1-888-FOR-HALT.
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