Basics of the Uncontested Divorce

Do you and your spouse agree on how to resolve all of your divorce-related issues? If so, you can pursue an uncontested divorce, which is often the simplest kind.

What Is an Uncontested Divorce?

In an uncontested divorce, you and your spouse reach an agreement about all of the issues in your divorce, including:

Once you've reached these agreements, you don't have to go into court and argue. Instead, you file court forms and a "divorce settlement agreement" that details the agreements you've made about how you want to divide your property and debts, what your custody arrangements for your children will be, and whether support payments will change hands.

Your settlement, and your final divorce, will have to be approved by a judge, which shouldn't be a problem. The judge will usually approve a settlement agreement unless it's clear that the terms are completely unfair to one person or were arranged when one person was under duress. 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—such as homes or rental properties. 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.

Can Couples with Minor Children or Substantial Assets Have an Uncontested Divorce?

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, couples can try mediation for help in resolving their disagreements. They can also negotiate through attorneys, although this option will increase their costs.

Do We Need Attorneys in an Uncontested Divorce?

You'll probably be able to handle your uncontested divorce with little or no help from a lawyer, but you may want to ask a lawyer to look over your paperwork and, perhaps, to review your settlement agreement, especially if you have young children and/or substantial assets.

Couples with short marriages, 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.

Many couples use a mediator to help them come to agreement on property and custody issues. And if you or your spouse has retirement benefits through work, through work, you might need to hire an actuary (appraiser) to value them or a lawyer to prepare the special court order you'll need to divide them. Assuming you use professionals for these tasks, you should be able to get everything done for between $3,000 and $6,000, depending on where you live and how much lawyers and actuaries charge.

Couples with more complex situations may also proceed without attorneys, but with greater caution, as one or both spouses could be giving up substantial legal rights. It may make sense to hire a consulting attorney to help you review your paperwork and potential settlement agreement to make sure you haven't made any mistakes or unknowingly given up a legal right.

In some states, couples who have agreed to divorce may file their paperwork jointly. In other states, it's 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 spouse, and the spouse 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 also hire an attorney to review the paperwork before the divorce is finalized.

Advantages of Uncontested Divorce

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.

When Uncontested Divorce Isn't a Realistic Alternative

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 will be at a disadvantage in any negotiation and will likely need legal representation.

However, even when uncontested divorce isn't an option, before concluding that a fully contested divorce trial is the only alternative, a couple might consider whether they can settle certain issues out of court. Protracted litigation is always both adversarial and expensive; limiting the number of issues you must fight over is the best way to conserve assets and reduce conflict.

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