True Default Divorce vs. Uncontested Divorce
Divorce is emotional. There’s no way around that fact, even if you and your spouse agree it’s the right choice. But when your spouse disappears or makes it difficult for you to complete the divorce process, that just adds frustration and stress to your burden.
Regardless of your situation, you have options. Read on to learn more about your options for a default and uncontested divorce.
What happens in a true default divorce?
A true default divorce occurs when one spouse gives up their right to have a say in the divorce proceedings, whether willingly or through a court order (this can happen in domestic violence situations). In most cases, courts are hesitant to grant a divorce without both parties present. Courts want to hear from both parties to make sure the situation is fair.
Step-by-step process for a true default divorce
While the default divorce process varies slightly by state and even by county, a petition for divorce must first be filed. Then, divorce papers must be served on the spouse who did not file the petition.
To serve your spouse, you must know where they are. If you don’t know where they are, you must request a court order to publish a notice in the newspaper that you’re seeking a divorce. To do that, you must show the judge you tried to serve divorce papers on your spouse, but your process server couldn’t locate them. You may also need to show records that you’ve attempted to contact your spouse in multiple ways with no luck.
Once you’ve published a notice, you must wait a certain period to make sure your spouse has time to see the notice and potentially respond. This time frame varies by state but is usually around one month.
After that, you must show the judge that you published notice, waited the required amount of time, and heard nothing from your spouse. If you meet all of these requirements, the judge may then grant you a default divorce, making your divorce legal even though your spouse wasn’t present.
This can be a complex and convoluted process. A divorce lawyer may prove invaluable to help you achieve your goals.
Some unscrupulous spouses may try to “pull one over” on the court by moving to a new state in order to skirt residency requirements or to avoid noticing their spouse and getting a default judgment. Luckily, states have residency rules in place prohibiting this type of behavior. For example, in California, you must have lived there for at least six months before you can file for divorce and in the specific county for at least three months.
What are the pros and cons of getting a true default divorce?
As you can see, if you can’t find your spouse, you still have options to get a divorce. But is it all rosy? Not necessarily. There are definitely pros and cons.
With a default divorce, you don’t have to provide any financial information. This can be both a pro and con. It speeds up the process, but if you’re looking for alimony or child support, you won’t be able to get it because neither of you are completing financial disclosures. The court’s ruling on final orders may not be as fair as you’d hoped if they don’t understand all the nuances of your situation.
The biggest pro to a default divorce comes from using it in a way to streamline and reduce the costs of your divorce. However, this requires absolute trust and agreement between you and your spouse, so tread carefully. If you and your spouse agree on all divorce terms – how to split assets and debts, who gets the home and car, where the kids live – then you can agree to have just one person file for divorce and request a default. The other spouse won’t respond to the petition, and the court may grant a default.
Notably, this can put the non-responding spouse in jeopardy if the petitioning spouse tries to take advantage of the situation. On the other hand, it can be a great way to reduce divorce costs.
The biggest con to default divorce is that one spouse doesn’t have a say. Whether by choice or by circumstance, when one spouse doesn’t have a say, courts are often willing to revisit divorce decisions. This means you could end up having costs simply kicked down the road.
Another con is the lack of financial disclosure. As noted above, if you’re seeking child support or alimony, you won’t be able to get it because neither spouse provides financial information.
What happens in an uncontested divorce?
An uncontested divorce occurs when you and your spouse agree that divorce is the right step, and you agree on how to divide up everything in your marriage. While this type of divorce most often occurs without minor children, you could still get an uncontested divorce with minor kids. You just may have to jump a few extra hoops.
Step-by-step process for an uncontested divorce
To get an uncontested divorce, you and your spouse will need to agree on all terms and sign a marital settlement agreement. One of you will file this agreement, along with a petition for divorce, with your county court. Unless the other spouse has waived service of process (rare), you’ll need to serve the divorce papers on your spouse. They can simply respond by stating their agreement.
Most divorces through Hello Divorce are uncontested. Let’s say you and your spouse married five years ago, have no kids, and own one home, two cars, and minimal assets. You come to an agreement about who gets the house; you each take a car, and you split your assets down the middle. Now that you’ve agreed, you put these terms into a marital settlement agreement and begin the divorce process.
Be aware that residency requirements apply here. In Utah, for example, you must have lived in your county for at least three months before filing for divorce. If you’ve recently moved, check your state residency restrictions before filing.
What are the pros and cons of uncontested divorce?
The biggest pro of uncontested divorce is that you and your spouse agree on the terms of your divorce, making the process faster and cheaper. You can often DIY your divorce or use your court’s self-help center online. However, this may require some uncomfortable conversations before filing for divorce. For example, you may need to attend mediation to agree on a couple final issues.
An uncontested divorce may be a bad idea if you and your spouse have trouble communicating. Property division, child-related issues and support matters can bring up unexpected conflicts. It’s vital that you are able to effectively speak with one another to resolve the matters in your divorce.
Have Questions About Divorce? Don't Know Where to Start?
Frequently asked questions
Q. What if you meant to file a response but missed the deadline?
A. If your spouse filed the petition but you failed to respond in time, you could ask the court for an extension. Especially if you received paperwork late or had an emergency during the response window, courts are pretty lenient for legitimate reasons.
Q. What if you want to file uncontested but don’t quite get along or don’t agree on all issues?
A. You can still file for an uncontested divorce. You’ll just need to work to resolve your disputes first to get to an agreement and thus your final decree of divorce. This is most effectively done through mediation.
Q. What might happen if I don’t file a response to my spouse’s petition for divorce?
A. You could end up divorced, which you may want. The catch is that you won’t get any say in how your marital assets are divided.
Getting help with your divorce
Hello Divorce can help with true default and uncontested divorces. Learn more about our plans and the support we can offer you to achieve your goal. We also offer flat-rate hourly legal advice if you need it.