In the simplest terms, an uncontested divorce means that the spouses are able to agree on the major issues involved in getting divorced, including:
If they are able to reach an agreement, the couple can often file paperwork without any court appearances, and as soon as the required time period (set by state law) has elapsed, the divorce will be final.
Not every uncontested divorce is the same, and not every uncontested divorce runs smoothly. The process is simplest when a couple has no minor children and few assets, including no real property. It also works best if each spouse is self-supporting or clearly capable of easily becoming self-supporting. Some states have simplified procedures available for couples in this type of situation. Such procedures are strictly limited however, and are available only for marriages that were relatively brief, generally five years or less.
Couples with minor children or substantial assets will generally be able to proceed through an uncontested divorce if they are able to agree on all of the major issues listed above. A couple that has minor disagreements in one or two areas may still be able to avoid a contested divorce in court, but they will need to negotiate with each other until they have reached complete agreement. If they are able to communicate well, they may be able to negotiate directly. If this is not feasible they can choose to go to a mediator for help in resolving their disagreements. They can also negotiate through attorneys, although this option will increase their costs.
A couple who has not been married long and has no minor children to care for and few assets to divide may be able to complete their divorce without either spouse hiring an attorney, particularly if their state has a simplified process that fits their situation. Couples with more complex situations may also proceed without attorneys, but with greater caution, as one or both parties could be giving up substantial legal rights.
In some states, couples who have agreed to divorce may file their paperwork jointly. In other states, it is common for the couple to agree to the terms of their divorce and then have one spouse hire an attorney to prepare the paperwork. A couple in this situation must understand that an attorney can only represent one party, and the party who is not represented could therefore be at a significant legal disadvantage—in most cases, unless the unrepresented spouse has an excellent understanding of the law, it’s a good idea for that spouse to hire an attorney to review the paperwork before the divorce is finalized.
The most obvious advantage is cost. Uncontested divorces are generally much less expensive than contested divorces. An uncontested divorce can often be completed by paying only the court filing fees (usually a few hundred dollars). Even where attorneys are involved in preparing paperwork or helping with limited negotiations, the fees can be kept low if the couple is able to reach agreement without resorting to court proceedings. Staying out of court is the other major advantage in uncontested divorce. And keeping conflict to a minimum can speed the recovery time for everyone involved.
Couples who have complex situations and major disagreements may not be successful with uncontested divorce. Major differences in power—financial or emotional—between spouses may complicate matters, such as where one spouse has a much greater earning capacity. A spouse who has experienced or who fears domestic violence by the other spouse needs legal representation.
However, even when uncontested divorce isn’t an option, before concluding that a fully contested divorce is the only alternative, a couple might consider whether they can settle certain issues out of court or submit some issues to arbitration. Protracted litigation is always both adversarial and expensive; limiting litigation is the best way to conserve assets and reduce conflict.