An uncontested divorce is when the husband and wife agree to all the terms of the separation. Essentially, there is nothing in dispute. The agreement needs to be in writing outlining all the terms that are necessary to be resolved such as custody/parenting plan of the children, child support, alimony, property distribution, debt distribution, health insurance, life insurance, taxes, and the division of retirement, bank and investment accounts.
Sometimes spouses discuss, negotiate and arrive at a full agreement of all issues on their own. Sometimes they consult with an attorney and/or mediator to assist them with their negotiations. And sometimes they hire attorneys to fully represent them, prepare all of the paperwork and take them through the process.
Once the agreement is reached and the proper paperwork is completed, the parties can proceed to get divorced by the court assuming the initial divorce paperwork has already been served on the other party and filed with the court. If this has not taken place, service and the filing will need to be made first. The available options for uncontested divorces has recently undergone some changes with the idea of making it quicker and easier for the parties. The options have also raised some confusion.
Traditionally, the parties had to wait a minimum of 90 days from the Return Date to get divorced. The Return Date is the date by which the person served with the divorce paperwork (the Defendant) is to file a form called an Appearance with the court – usually a couple of weeks after the Defendant is served. So, even if the parties had a full agreement and all their paperwork in order, they had to wait until the 90th day – called the Case Management Date – to get divorced. Adding to this the time for service on the other party, the time for filing the Appearance and the time between the Case Management Date and the actual divorce date that was issued, usually resulted in the quickest divorce time of approximately 4 months from start to finish assuming all went well. This process also requires the parties to be present in court for their divorce barring unusual circumstances.
Then came a new process called the Nonadversarial Divorce. This process does not require service of the initial divorce paperwork, the mandatory waiting period nor appearance in court. It allows the granting of a divorce pursuant to the agreement of the parties based on paperwork alone. The process can be completed in 35 days or less. However, very few couples will be able to take advantage of this option. In order to be eligible for this type of divorce you have to meet the following criteria:
- Married 8 years or less;
- Neither pregnant;
- No children born or adopted by parties;
- No ownership or interest in real property (real estate);
- Total value of all property owned by both parties is less than $35,000.00;
- Neither party has a company sponsored pension plan;
- Neither party has a pending bankruptcy;
- Neither party applying for or receiving Medicaid benefits;
- No other action for dissolution of marriage pending; And
- No restraining or protective orders between the parties.
This process is started by a joint petition being filed with the court along with other, applicable paperwork. The parties have to waive service of process, waive their right to a trial, waive alimony, spousal support and appeal rights. Either party is allowed to change mind and revoke the use of this process for their divorce. The court will review the paperwork and decide whether to grant the divorce pursuant to the agreement on the papers or schedule the matter for a hearing to review any questions or concerns the judge may have. If granted, the notice of dissolution is sent by mail to the parties.
Last is what I call the in-between version. This is for those couples that don’t meet the criteria for the Nonadversarial Divorce yet have an uncontested divorce and don’t want to wait 4 months to get divorced. For these couples, the court can now waive the 90 day waiting period described above. So, you prepare and serve the paperwork and file it with the court. You come to an agreement and put it in writing. You prepare the other applicable paperwork and you are done well before the Case Management Date (90 day mark). You now have the option of filing a motion with the court asking it to allow you to proceed prior to the Case Management Date. This motion is acted upon by the court quickly and may even result in the ability to obtain your divorce the same day the motion is filed, if not shortly thereafter.
Many people think they do not need an attorney for an uncontested divorce. I strongly recommend at least consulting with an attorney to go over your options and review your paperwork. Some modest time and investment before the divorce orders go into effect can be your best insurance against remorse, inconvenience and much more time and money dealing with or trying to fix a mistake.
The attorneys at Bellenot & Boufford, LLC can help you at every step along the way. Contact Us for a Free Phone Consultation.