There is little one can do to prevent the stress of parting with a partner, especially if you're not the one who initiated a divorce. However, there are ways that can help make the legal process painless and quick, thereby reducing the stress. You can opt for an 'uncontested divorce' and limit the role of lawyers. Simply being on the same page as your soon-to-be-ex-spouse and not using lawyers for a proxy fight will make the divorce process much easier.
What is an Uncontested Divorce?
An uncontested divorce is a type of divorce proceeding in which the spouses have agreed on all of the important issues arising out of the divorce prior to filing for a divorce. In general, courtrooms are adversarial forums and most court cases take so long to conclude because of the fighting between the parties. If both parties agree on the outcome, however, the only remaining thing to do is for the court to do is finalize the ruling, which results in a quicker, smoother process.
Agreement Between the Spouses Seeking Divorce
The hallmark of an uncontested divorce process is agreement. For spouses who remain amicable and can talk out their issues, an uncontested divorce could speed up the divorce process considerably. In general, the spouses must agree on each of the following issues that arise during the divorce process:
- The equitable distribution (or division) of marital property between the spouses;
- The division of marital debt obligations between the spouses;
- Alimony, which is also occasionally known as spousal support or maintenance;
- Custody arrangements for minor children and, occasionally, pets;
- Visitation schedules for minor children;
- Child support arrangements;
- Child healthcare, education, and insurance costs;
- Method of payment for alimony and child support; and
- The division of any tax consequences that may result from the divorce.
Keep in mind, however, that each state’s divorce rules may prevent a couple seeking divorce from agreeing to the exact terms they agree on. The most common example of court alteration of pre-divorce agreements is child support. Many states have very explicit child support guidelines that must be followed, and courts will alter any agreement between the spouses to fit the guidelines.
Does My State Allow Uncontested Divorce?
Yes! Every state’s divorce law has some mechanism that allows courts to quickly grant divorces to spouses who are seeking them. The only difference state-by-state will be the allowable methods of seeking an uncontested divorce. Many states actually have multiple ways for spouses to get an uncontested divorce. As an extreme example, New York contains three different ways that New York residents can seek an uncontested no-fault divorce.
In a majority of states, the most common way that uncontested divorces are filed is a “divorce-by-settlement” or “divorce-by-agreement.” In a divorce by settlement or agreement, the spouses each agree to the terms of the divorce before filing for divorce and record their wishes in a written, legally binding settlement agreement. A divorce settlement is a contract between the spouses that most courts will honor so long as the contract is essentially fair to both spouses.
A large number of other states allow for spouses to file for divorce jointly, rather than separately. These types of joint filings are uncontested, non-adversarial proceedings which can move through the courts more quickly whether the spouses have actually agreed fully on every issue or not.
A small number of states also allow a type of divorce procedure known as a “summary divorce.” For example, Florida and Illinois offer summary divorce. Like jointly-filed divorces, a summary divorce must be agreed to by both spouses and happens automatically as soon as the paperwork is correctly filed. Summary divorce states often do not even require the spouses to attend a hearing. However, summary divorce states often place specific limitations on which spouses can seek divorces. For example, one of the most common rules of summary divorce is that the spouses seeking divorce cannot have minor children born of the marriage.
Finally, there is also a procedural loophole available in every state known as divorce by default. In a divorce by default, the spouse filing for divorce must simply file for divorce and follow all of the procedural formalities to begin the divorce process. Then, the responding spouse should not file any response or make any appearance. This creates a situation known as a legal default. In a default scenario, the Court may grant a divorce in accordance with the initial divorce filing. This method is riskier than a more traditional divorce by settlement agreement, because the judge ruling on the default judgment may choose to not enter a ruling exactly as the filing spouse intended.
How to Best Limit the Role of Lawyers
It is entirely possible to get divorced without the assistance of a lawyer; however, it is not generally advisable to never speak to a lawyer. Limiting the role of lawyers is generally a goal for spouses seeking uncontested divorce, and it is not difficult to find places to cut lawyers out of portions of the process.
First, in some states, spouses may be able to hire one lawyer to represent both of them. In many states, joint representation of divorcing spouses is against legal ethics rules; however, where it is allowed, hiring only one lawyer will halve legal costs.
Second, divorcing spouses could hire lawyers only to perform specific tasks. For example, the spouses could hire lawyers solely for the purpose of drafting a divorce settlement agreement. Similarly, a lawyer could be retained merely in an advisory role, giving advice on how and where to file without actually becoming involved in the divorce proceedings.
Filing for Uncontested Divorce
The courts in most states make filing for uncontested divorce very simple by providing pre-written divorce forms. In states that have uniform divorce forms readily available, filing is extremely easy if you follow the instructions on the forms.
In states without divorce forms, however, it is generally not difficult to learn how to file for divorce properly. First, non-court created divorce forms can often be found in “form books” found at local law libraries. Second, while most courthouse and judicial employees cannot provide legal advice, they will often be able to help move you through the process. Always ask for help if you are not sure what to do next.