In California, there are generally two types of divorce: contested and uncontested. A divorce is "contested" when the spouses don't agree on some or all aspects of the divorce, meaning that a judge will hold a trial, examine the evidence, and call witnesses. The contested divorce process takes quite a while.
In contrast, in an uncontested divorce, the spouses agree on all of the issues required to end their marriage, so there's no need for the judge to hold a trial. An uncontested divorce is much faster and cheaper than traditional divorce—spouses can often use a DIY solution like an online divorce service. They do, though, also have the option of getting professional help.
In California, "uncontested divorce" essentially means that the spouses have agreed to divorce and have reached an agreement about all major issues. One spouse files for divorce based on a no-fault ground (irreconcilable differences or permanent legal incapacity to make decisions), and the other spouse agrees. (Cal. Fam. Code § 2310.)
The issues that you must agree on include spousal support, child custody, and division of property and debt. Child support typically isn't subject to negotiation because the court will determine a minimum amount automatically according to the child support guidelines. If you or your spouse would like to set a child support amount that differs from the guidelines, though, you both will need to agree on the terms to get an uncontested divorce in California.
Because there's no need for a trial or multiple court appearances, the most significant benefit of an uncontested divorce is that it is significantly less expensive than a contested divorce. Uncontested divorces are also quicker.
Do You Need a Lawyer for Uncontested Divorce?
You don't need to hire a lawyer to get an uncontested divorce in California and you can represent yourself during the process. Spouses can try to handle everything themselves or use an online service that eases the process. Even though there's no court battle in an uncontested divorce, one or both spouses can hire attorneys to help them through the uncontested divorce. You might want to talk to a lawyer, for instance, if your case feels complex or you have unanswered questions.
In general, to get an uncontested divorce in California, you must meet all of the following criteria:
You and your spouse must create a written agreement, also known as a stipulated judgment, about your divorce. The stipulated judgment must state that you both agree to end the marriage, and it may include information about property and debt division, spousal support, and child support and custody (if you have minor children). Keep in mind that your agreement must comply with the state's guidelines regarding child support.
The stipulated judgment is a written contract between you and your spouse and is binding on both of you, so be sure that you understand the contents of the agreement. Once the agreement is complete, you must have it notarized.
If you choose to work with one, an attorney can give you advice on your agreement and make sure you complete and file the paperwork correctly. Keep in mind that there's another kind of professional—a mediator—who can help spouses reach agreements. (Learn how divorce mediation works in California.)
After your stipulated judgment is complete, the next step to getting an uncontested divorce is to file a petition for divorce. The spouse that files the petition is called the "petitioner," and the other spouse is called the "respondent." The petition explains to the court what you are seeking (an uncontested divorce) and why you are seeking it (irreconcilable differences or permanent legal incapacity to make decisions). You must also include basic information about yourself and your spouse.
If you have children under the age of 18 with your spouse, you will need to fill out additional forms about the children, custody, and child support. In addition, if you need more room to list your property and debts, you must attach a Property Declaration. Visit the California Courts website for a complete list of forms and instructions. Or, you can use a DIY service like DivorceNet's Online Divorce, which fills out the forms for you.
Filing for divorce isn't free, and you must prepare to pay the cost to file. However, if you can't afford to pay, you can submit a fee waiver form asking the court to waive all court fees for your case.
Once you pay the filing fees and submit your paperwork, you must serve your spouse with copies of the divorce by having a third party deliver the papers. Depending on whether your spouse responds, your case will proceed as either a "default" case or an "uncontested" case.
A default case occurs when the respondent does not file a response to the petition within 30 days. If your spouse defaults, you can file forms to request a dissolution by default. For a full list of the forms you must submit, see the California Courts website.
Before you request dissolution by default, it's essential that you've properly served your spouse with the paperwork and wait the full 30 days. If you don't meet the service requirements, the court will deny your request for a default divorce.
Since you and your spouse have already agreed to the terms of your divorce, the judge will ratify your agreement and issue a divorce order after a six-month waiting period. In some cases, you and your spouse will have to complete a final Declaration of Disclosure at the end of your case.
If your spouse files a response to your petition, your case will proceed as an uncontested divorce. Either you or your spouse must turn in final forms to the court to ask for a judgment of divorce. The final forms include orders you want the court to make about your property and debt, spousal support, and child custody and support. For a full list of the forms, see the California Courts website.
If all of your papers are in order, you have to wait six months after filing for an uncontested divorce before the judge will sign your divorce decree. If your paperwork is not in order, the court will ask you to correct it, which will delay the process. (Cal. Fam. Code § 2339.)