To file for an uncontested divorce, one party (the petitioner) files the divorce complaint or petition, along with any other required documents. The petitioner can get the paperwork through the courts or through a lawyer. Then, the petitioner arranges for the other spouse to be served with the paperwork. Many people who are unsure how to file for an uncontested divorce find the process fairly straightforward, especially with the assistance of a divorce lawyer.
What Is an Uncontested Divorce?
In an uncontested divorce, the parties resolve all issues, including parenting schedules, child custody, property division, and debts, without going through litigation or a trial. The benefits to uncontested divorce are numerous and include less emotional stress, financial savings, and collaboration that comes in especially handy for a respectful co-parenting relationship.
Many uncontested divorces start as contested, although it is possible for the parties to have an uncontested divorce from beginning to end.
An uncontested divorce includes elements such as a prove-up hearing. This type of hearing normally ends with the judge finalizing the divorce. The atmosphere is relatively relaxed and nothing like the environment surrounding a heated trial.
The petitioner (the person who filed for divorce) must attend. The respondent or his or her attorney would ideally show up, too. However, the hearing can proceed without the respondent and is based primarily on the marital settlement agreement (MSA).
The parties sign the MSA before the prove-up date, and it outlines everything the divorce covers, such as custody and division of assets, property, and debts. The purpose of the hearing is for the parties to “prove-up” their case and show that the divorce settlement is not glaringly unreasonable or unfair to one of the parties.
The Parties Can Use Divorce Lawyers
Many people choose lawyers to represent them in uncontested divorces, although it is possible to go through the process without representation. In some situations, one party has a lawyer while the other does not. The same lawyer cannot represent both spouses.
Divorce lawyers are beneficial because they streamline the process and ensure compliance with all requirements. They also look out for their clients during a time when a client’s judgment may be clouded with emotion.
Divorce can be gut-wrenching, even in seemingly amicable splits. People make concessions because they feel sad, guilty, or even happy, and they regret these moves weeks, months, or years down the road. An attorney helps minimize the chances of these “rash” actions.
A judge is not going to step into a case, scrutinize everything, check for complete fairness, and make sure you are OK with it all when an MSA seems equitable. Judges only step in and refuse to issue final divorce decrees in cases with huge, significantly glaring errors or disparities.
These situations are rare because the court assumes that the parties mean it when they sign uncontested divorce settlements. Meanwhile, attorneys take the time to go over the different issues with you in detail and educate you about your options.
Difference Between Contested and Uncontested Divorce
In contested divorces, the parties disagree on at least one issue, whether minor or major. In uncontested divorces, they agree.
However, there are many versions of contested and uncontested divorces. For example, many uncontested divorces look like this at the beginning: A couple disagrees on several issues but wants to separate collaboratively. The parties talk between themselves or with the help of lawyers or mediators to settle their issues successfully.
An uncontested divorce generally has three main elements. First, the parties decide to go the uncontested route and work over days, weeks, or months to agree on any areas of contention. Second, one of the parties files the paperwork, and the other party responds accordingly. Third, the petitioner (and perhaps the respondent) appears at the final hearing for the divorce to be finalized.
On the other hand, a contested divorce typically includes many motions being served and answered, discovery, spouses reluctant to cooperate and be forthcoming with information, “invasive” questioning into your finances, parenting styles, lifestyle preferences, and much more, a trial with witnesses, considerable expenses, and maybe even a guardian ad litem for any children or an attorney to represent them.
In a contested divorce, the judge decides matters such as asset division and child custody. That said, it is possible for the parties to agree on some areas and go to trial over the other areas. The judge can make decisions that both parties hate. A contested divorce is risky in that the parties give up the power to have a say in the divorce’s outcome. They give that power to a judge, while, in an uncontested divorce, the parties empower themselves.
Default Judgment Divorce
A default judgment divorce is one version of an uncontested divorce. This type of divorce occurs when the respondent’s spouse does not respond to divorce motions or show up in court for the hearing. In some cases, this occurs because the spouse legitimately cannot be found or reached. In other cases, it happens because both spouses plan it this way ahead of time.
For example, perhaps one of the spouses simply wants no part of the divorce business or the spouses want to reduce the court’s involvement even further. This approach has significant potential downsides for the respondent, though.
Respondents give up their rights to contest the terms of the divorce. They could be tricked by unethical petitioners or divorce lawyers who change a few words here and there from the paperwork the spouses agreed to versus what the petitioner actually filed. You can get virtually the same benefits in a regular uncontested divorce that you do with a default judgment, so proceed carefully.
Cons of Uncontested Divorces
Filing for an uncontested divorce can have a few downsides. These types of divorces generally are not appropriate when at least one of the parties has a history of abuse or manipulation, especially when it has been directed toward the other party. A basic level of trust is essential in uncontested divorces. Trust is not possible with abuse, manipulation, or fear in the picture.
Another disadvantage of an uncontested divorce is that one or both of the parties may forego lawyers. Without a professional advocate, a spouse may be more likely to make decisions he or she regrets later because the decisions go against his or her best interest or the best interests of the children.
Effects of Contested and Uncontested Divorces
The impact of a contested divorce on children tends to be more serious and negative than the impact of filing for an uncontested divorce. Divorce is rarely easy on children no matter what, but with an uncontested divorce, children are less likely to feel caught in the middle of a tug-of-war.
The kids get to see consistency and security, witness collaborative problem-solving approaches and are generally in better mental and emotional health. They are less likely to have to deal with parental fights, and they will benefit from healthy co-parenting, which is easier to accomplish after an amicable divorce. A contested divorce can put children at more risk of anxiety and depression.
Uncontested divorces require the parties to stay focused on collaboration and compromise, to prioritize the children’s (and pets’) best interests, and to deal with their feelings, anger, and resentment through healthy outlets such as therapists and supportive friends.
How Do I Get an Uncontested Divorce?
To get an uncontested divorce in Illinois, you must meet the uncontested divorce requirements. The guidelines mandate that the parties must agree on all issues and that the filing party appears at the final hearing. At least one of the spouses must have lived in Illinois for the 90 days previous to the divorce finalization.
There is more to getting an uncontested divorce, of course. For example, it helps greatly to speak with a divorce lawyer and obtain legal representation for the process. You can file yourself, though. In many localities, the papers are available online. Otherwise, check with your local courts.
In a practical sense, if you want an uncontested divorce, it helps to handle the split courteously and with a cool head from the beginning. For example, if you want a divorce, but your spouse does not avoid springing any divorce surprises on your spouse, such as having papers served with no warning and no inkling that divorce is forthcoming.
That is a recipe for anger and other negative emotions running high. Many spouses in this situation would be unwilling to sit down and hammer out issues such as child support and debt in a collaborative manner, at least for a few months.
To achieve an uncontested divorce, you and the other party should agree to try to make the divorce uncontested due to its many benefits such as the cost savings, positive effects on the children, and having a say-so in what happens (versus a judge getting the final word on decisions). Keep your mind open, your tone respectful, and try to see issues from the other person’s perspective.