If you’re getting divorced, an uncontested divorce may be the easiest and most painless route. These divorces are often faster and cheaper than contested divorces, and you retain control over how your divorce-related issues are settled as opposed to letting a judge make these important decisions for you.
Am I eligible to file for uncontested divorce?
Getting an uncontested divorce is the most cost-effective and timesaving way to get divorced – but is it a viable option for you? Each state has its own eligibility requirements for an uncontested divorce.
If you and your spouse disagree on some issues and cannot resolve them on your own, you’ll need a judge to resolve them for you. That’s a contested divorce. But if you’re amicable and able to come to an agreement on your own, you may be eligible for an uncontested divorce.
So what makes you eligible for an uncontested divorce? Ultimately, it’s whether you’re amicable with your soon-to-be ex. If so, you’re more likely to be able to discuss your divorce objectively and reach conclusions on all matters.
If you can do that, you can then draft a marital settlement agreement – a document that lays out all the terms of your divorce. You’ll file this along with your petition for dissolution of marriage.
What are the residency requirements for an uncontested divorce?
Each state has its own residency requirements for divorce. These laws are in place to prevent people from hopping across state lines to get divorced. Most states require you to have lived in that state for at least a few months.
- Some states require both spouses to have lived in the state; others only require one spouse to be living in the state.
- Some states require you to have lived in the specific county where you file for divorce; others allow you to divorce in any county, provided you’ve lived in the state for at least a few months.
It’s important to know and understand the residency requirements in your state so you can be sure to follow them. Not knowing the rules could lead to extra costs and extra time before your divorce is finalized.
Waiting periods
In addition to residency requirements, some states impose a waiting period. This is a required amount of time that must elapse from the date of your filing until the divorce decree can be issued. For some states, the waiting period is quite short. Other states impose a year-long waiting period. The sooner you file, the sooner that clock starts ticking.
How do I file the divorce petition?
To file a petition for dissolution of marriage in your state, you’ll need to locate your county clerk of court. They may have a template form you can use, or you may need to write one up on your own.
You’ll also need to pay the filing fee. Every county clerk has filing fees, and these vary across the country. Some states will waive or reduce the filing fee if you meet certain requirements, so it doesn’t hurt to ask, as these fees are often several hundred dollars.
Once you have the petition and have described exactly how you and your spouse agree to resolve all marital matters, you file the petition with the clerk. If you have drafted a marital settlement agreement – which you should do before filing your petition – attach it to the petition so the judge can see the full picture as soon as they get your filing.
Serving your spouse divorce papers
Once you’ve filed your petition, you’ll need to serve it on your spouse. Even if your spouse agrees that marriage is the right step and agrees on how to divide everything, you still must serve them.
A divorce is a civil action in court involving two parties. Each party must receive notice of what the other party files to ensure fairness and equity. As the spouse who files the petition, it’s your responsibility to serve the petition and any other documents you file on your spouse. This gives your spouse time to review the petition and respond. Your spouse will usually have about one month to respond.
To serve the petition, most states allow you to use any disinterested adult. That means you could have a friend serve it, though that’s not recommended. The best way to serve your spouse is to pay a professional process server. They do this every day and know how to verify with the court that they’ve served your spouse, an important step in your divorce process.
What about the children (or other dependents, like pets)?
You can still get an uncontested divorce with minor children, but there are more rules you’ll need to follow.
Importantly, your marital settlement agreement must include any applicable custody and child support terms. Often called a parenting plan, you can include this in your marital settlement agreement or make it a separate legal document.
You’ll need to decide the following:
- Who will be the primary custodial parent
- Who will pay child support (if anyone)
- Which parent’s home address will be used as the child’s home address
- How you’ll divide up weekends, holidays, school closings, and summer vacation
- How childcare costs will be divided
- Any other matters relating to your child
Every state considers what’s in the best interest of the child. If one parent is abusive, for example, you’ll need to avoid filing an uncontested divorce because you’ll want to have a larger share of parenting responsibilities. (Note: Asking for this would require you to provide evidence of your spouse’s abuse.)
Who moves out of the marital home?
When you file for an uncontested divorce, you and your spouse get to decide who moves out of the marital home. That’s one of the biggest benefits of uncontested divorce. When left up to the judge, spouses are frequently ordered to simply sell the home and divide the proceeds.
If you want to stay in the marital home, be prepared to give up something in return. That may mean you assume the mortgage and pay your spouse a fee. Or, you might assume the mortgage and have your spouse take the car. Ultimately, the decision is yours – and if the distribution is equitable, a judge is likely to approve your request.
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Do we need to get mediation?
In most states, mediation is usually required in divorce. However, when you and your spouse agree on all issues, you have nothing left to mediate, so you’ll be able to avoid this extra time and expense.
If we agree on everything, how can we save money?
An uncontested divorce saves you money because you spend less time in court. When you retain control over how your marriage is divided, a judge is left to simply review your requests and approve them. To get your final divorce decree, you’ll be required to go before the judge so they can ask you any final questions and make sure you both truly understand and agree to all the terms. If the judge is satisfied, they’ll issue your final divorce decree.
Going this route also saves you time. The fewer court appearances you have, the less time it takes before you get your final divorce decree.
If you think you and your spouse are headed for an uncontested divorce, Hello Divorce can help. Click here to learn about our plan options. If your divorce isn’t that simple, consider purchasing a flat-rate block of time with one of our legal advisors to point you in the right direction.
Hello Divorce Founder Erin Levine tells you how to DIY an uncontested divorce online:
