Uncontested Divorce Laws
If you and your spouse want to end your marriage, you may have the fortune of being able to resolve your issues in an amicable fashion. An uncontested divorce is an option for you.
In contemplating the termination of your marriage, and all of the other issues related to that process, you need to familiarize yourself with the basic elements of uncontested divorce laws. By understanding the essential components of uncontested divorce laws you will be in the best possible position to understand what you need to do in order to assure obtaining a divorce degree in the shortest time with the least difficulty.
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Petition and Related Documents
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In commencing a divorce action, including one that you anticipate to be uncontested, there is a set of documents that must be prepared and filed with the court. While there is some variation in the preliminary documents required in a divorce case from state to state and even from courthouse to courthouse, the primary array of documents that need to be filed is similar.
Pursuant to applicable divorce law (including that associated with an uncontested proceeding) a petition for divorce (sometimes known as a complaint for divorce) needs to be filed by one of the spouses. The other spouse will file with the court what is called a voluntary entry of appearance. Through such a document this spouse voluntarily submits to the jurisdiction of the court; serving this spouse with "divorce papers" becomes unnecessary.
Whether the divorce is contested or uncontested, the law also requires the preparation of other documents including proposed temporary orders. Proposed temporary orders are directives that deal with issues such as child custody and parenting time (visitation), child support, temporary maintenance and other matters during the duration of the divorce proceedings. If reasonable, a court will approve the proposed orders submitted by the parties.
Other documents that need to be prepared and submitted to the court will include a child support worksheet as well as a verified statement regarding assets and debts. (A verified statement is one that is and correct and true to the best knowledge and belief of the person who signs off on the document.) In regard to all of these documents, both parties to the divorce submit them jointly rather than individually as occurs in a contested divorce case.
Statutory Time Frame
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Although the laws vary slightly from state to state, there is a statutory waiting period from the date a divorce petition or complaint is filed until the date at which a court can issue a final divorce decree. Typically the amount of time that must elapse is six months.
The time frame set forth by law is not altered if the divorce is uncontested. The parties must still wait for the statutory time frame to lapse. The cannot agree to waive the waiting period even though they agree on all matters relating to the divorce.
One exception exists in most states that allow for an emergency divorce. Through an emergency divorce, the waiting period is waived. Courts do not often agree to issue emergency divorce decrees. The most common reason for which an emergency degree is allowed is in a case in which the health of one of the spouses somehow is endangered in the absence of an emergency degree.
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Settlement Agreement
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At the heart of any uncontested divorce is the settlement agreement. Pursuant to applicable statutes (and companion court rules), a divorce is uncontested only when both parties are in essential agreement as to all major issues.
The settlement agreement must dispose of all of the primary issues associated with the divorce: division of property and debt; child custody, parenting time and support; and maintenance. Both parties sign the settlement agreement in front of a notary public. Once completed, the settlement agreement is submitted to the court for approval. The settlement agreement will be incorporated in and made an effective part of the final divorce decree in the case at the appropriate time.
Jurisdictional Hearing
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The fact that you intend to seek an uncontested divorce does not mean that there will be no court appearances. There will be at least one court appearance in an uncontested divorce case. This particular appearance oftentimes is called a jurisdictional hearing. Even though the case is uncontested, the court must still receive evidence that establishes the grounds for a divorce exist.
The jurisdictional hearing is schedule and takes place following the end of the statutory waiting period. A hearing of this type in an uncontested divorce tends to be informal and in many instances is conducted in the judge's chambers rather than in an open courtroom.
The hearing is designed to establish jurisdictional issues including that residency requirements are met and the parties are incompatible and the objectives of a marriage no longer legally can be met. The hearing is designed to further confirm that all necessary matters are dealt with in the settlement agreement and that the statutory waiting period has run its course.
Technically speaking, only one of the parties needs to be present at this hearing (normally the spouse who filed the petition in the first place).
Legal Representation
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Although you anticipate that your divorce is uncontested, you nonetheless will want to consider engaging the services of a qualified lawyer. By engaging an attorney you will be able to rest easier knowing that all of the necessary paperwork associated with the case is prepared appropriately. Moreover, an experienced divorce attorney will fully understand the procedures to be followed at the courthouse.
You also need to keep in mind that rather frequently a divorce that begins uncontested ends up turning into a pitched battle. You definitely need legal representation in such a situation.
As a final note, keep in mind that an attorney ethically can only represent one party to a divorce, even when the case is considered uncontested. Therefore, both parties are best served by consulting with their own lawyers during the divorce process.
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