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Tuesday, June, 2, 2015

What is an Uncontested Divorce?

An uncontested divorce is a divorce in which only one party files papers with the court. The other party is aware of the proceeding, but does not file an "answer" to the complaint. In the absence of an answer, the court will enter a judgment of divorce by default. Most of the time, uncontested divorces take place in situations where the parties have reached an agreement regarding their mutual rights and obligations. This agreement is usually reduced to a writing called a "Property Settlement Agreement." When the Court enters the Judgment by default, the judgment usually includes the terms of the Property Settlement Agreement. In an uncontested divorce, it is important that the parties are confident that each is providing all information regarding their finances in a truthful and complete manner.

In an uncontested divorce, the parties may be required to share tax returns, pay stubs, account statements, and other detailed information on an informal basis. In some circumstances, it may also be necessary to value certain assets, through professional appraisals of real estate, private businesses, professional practices and the like. If there is reason for this level of openness and trust to be absent, then an uncontested divorce may not be advisable. Recourse to Court procedures and formal "discovery" may be required. Although such discovery can be expensive and time consuming and may increase the level of conflict between the parties, it may be necessary when one party does not believe that the other party is telling the truth the whole truth and nothing but the truth. The six basic steps that usually take place in an uncontested divorce are discussed below. Often, many of these steps can take place either simultaneously or in an order slightly different than that set forth below. At the outset, you should ask your attorney to walk you through the entire process and present a clear plan for obtaining your uncontested divorce.


In this first step, the person seeking the divorce has an initial consultation with his or her attorney. This meeting should involve a careful identification of all issues that must be addressed during the entire process and a careful and accurate summary of all relevant facts, including detailed financial information. Frequently, follow-up meetings may be required and additional information may have to be supplied to the attorney by the client. Where the client does not have the necessary information, before a final settlement can be reached, the other party must provide it.


This step may take place either before or after filing a Complaint for divorce, depending on the circumstances of each individual case. The Property Settlement Agreement is the heart of the divorce process and will control the restructured lives of the parties after the divorce is finalized. Invariably, it is the product of negotiation between the parties and their attorneys and may take a considerable amount of time to work out in some cases.

A Property Settlement Agreement should set forth and control all of the rights and obligations of the parties including but not limited to: (i) Child Custody; (ii) a Parenting Plan; (iii) Child Support payments; (iv) the conditions on which the payment of Child Support ceases (usually called "emancipation"); (v) Responsibility for maintaining health insurance for the children; (vi) Payment of unreimbursed medical expenses and such expenses as private school, summer camp, computers, or any other extraordinary expenses that are not included in the basic support payments for the children; (vii) Payment of college tuition; (vii) Payment or waiver of Alimony, including a determination of for how long and at what levels Alimony should be paid and whether or not the agreement relating to Alimony may be modified at a later date; (viii) The "equitable distribution" of the parties' property, including real property, bank accounts, retirement assets such as IRA's and 401(k)'s; automobiles, boats planes and watercraft, and other personal property; (ix) Responsibility for debts and the responsibility of either party to protect the other from liability because of those debts (Note: Third-party creditors are not bound by the terms of a Property Settlement Agreement and are free to pursue either party to collect a joint debt regardless of the agreement of the parties); (x) Tax issues, including the treatment and consequences of transfers of assets and payments of money under the agreement; liability or refunds on prior tax returns, the allocation of deductions and dependents, etc.; (xi) provisions extinguishing the rights of the parties in each other's estates; and (xii) a host of other miscellaneous provisions that regularly appear in written agreements. This list is not intended to be exhaustive and the parties should attempt to address any and all issues between them in the agreement.


The attorney prepares all of the papers necessary to have the case filed with the Court for a divorce. These papers include a Summons, a Complaint, a Certification of Insurance that lists all of the insurance covering the parties and their children, and in many cases, a Case Information Statement that sets forth detailed information about the parties and their finances. The party that files the complaint asking for a divorce is known as the "Plaintiff." The party who does not file the complaint is known as the "Defendant."


After they are filed with the Court, the papers are delivered to the Defendant. This is commonly known as known as "service of process." The Rules of Court are very specific about what is and what is not proper service. For the most part, formal service of process involves the use of a sheriff's deputy or a private process server. This takes time and costs money. In an uncontested divorce, however, the requirement of formal service of process may be excused if the Defendant receives the Complaint by informal means and then signs a document called an "Acknowledgement of Service." This document operates as proof that the Defendant has received a copy of the Summons, Complaint and other papers filed with the Court and is aware of his or her rights to respond to it. The Defendant is not obligated to sign the Acknowledgement of Service and may instead insist on formal service. However, because uncontested divorces usually involve cooperation between the parties, typically the Defendant or the Defendant's attorney signs the Acknowledgement of Service and returns it to the Plaintiff's attorney. If the Defendant signs the Acknowledgement of Service on his or her own, it must be notarized.

The Plaintiff's attorney then files the signed Acknowledgement of Service with the Court.

By signing the Acknowledgement of Service, the Defendant does not give up any right other than the right to insist on formal service. A Defendant who signs an a Acknowledgement of Service still has the right to file an "Answer" to the Complaint within thirty-five days of the date of service. An Answer is a document filed with the Court by the Defendant that addresses each statement in the Complaint and states whether or not the Defendant agrees that the statement is true. The Defendant also has the right to file a "Counterclaim." A Counterclaim is basically the same thing as a Complaint, except that it is filed by the Defendant. A Counterclaim is a formal statement by the Defendant that he or she is entitled to a divorce, just as the complaint is a formal claim that the Plaintiff is entitled to a divorce.

By definition, in an Uncontested Divorce, the Defendant does not file either an Answer or a Counterclaim and the process proceeds by default, as discussed below in Steps Five and Six. If the Defendant does choose to file an Answer or Counterclaim, the parties may still settle in appropriate cases and can then proceed to a final hearing, similar to the one described below in Step Six. This may or may not require formal discovery, depending on the circumstances. Defendants should consult with an attorney, even in an amicable situation to determine whether there is a need for filing an answer or counterclaim.


If, after thirty-five days, the Defendant has not answered the Complaint, the Plaintiff's attorney may prepare a "Request for Default Judgment." This is a document filed with the court asking for a judgment of divorce without a trial because the other party did not answer. It is the same thing as winning by forfeit if the other team does not show up for the game. The Plaintiff must also file a sworn statement that the Defendant is not a member of the Armed Forces (generally known as the Affidavit on Non-Military Service"). The Plaintiff's attorney must serve a copy of the Request for Default and the Affidavit of Non-Military Service on the Defendant. If the Defendant does takes steps to prevent the entry of a default Judgment, the Court will enter a "Default" and set a date for a hearing to enter an uncontested Judgment of Divorce. The Court also must make a determination as to the parties' rights and responsibilities after the divorce is final. If there is no agreement between the parties, the Court may hold a hearing and consider evidence on which to base this decision. This hearing is held if the Plaintiff's attorney files a document known as a "Notice of Equitable Distribution", which also must be served on the Defendant However, in the typical uncontested divorce, at the time of the default, there usually is, a Property Settlement Agreement between the parties. At the hearing, the Property Settlement Agreement will control the terms of the Judgment to be entered by the Court.


After entering the Default, the Court holds a hearing to make a finding both that such legal requirements as proper jurisdiction and adequate grounds for divorce are present in the case and that the parties have entered into the Property Settlement fairly and knowingly. As a rule, the Plaintiff must attend the hearing with his or her attorney. It also is advisable for the Defendant to attend with counsel, not only to protect his or her rights, but also to assure the Court that the Property Settlement Agreement was fairly entered into. The attorneys and the Judge may ask each party questions. These questions may address, among other things, whether the parties feel that the agreement is fair, whether they want it to become part of their judgment of divorce and to control their rights and obligations, whether the agreement was the result of threats or unfair pressure, and whether the party being questioned is under the influence of alcohol or drugs or otherwise lacks the mental ability to make a reasoned decision regarding the agreement. The parties also may be asked to describe their lifestyle when they were married and to state whether they believe that the terms of the Agreement will allow them to maintain a lifestyle after the divorce that is comparable to the lifestyle that they had during the marriage.

Assuming everything is in order, the Judge will then grant the divorce by signing a form of judgment prepared by the Plaintiff's attorney and will staple the Property Settlement Agreement to the Judgment. This will "incorporate" the Property Settlement Agreement into the Judgment, making the Agreement a part of the Judgment itself and transforming the private agreement of the parties into the formal Judgment of the Court. The parties are then divorced. Usually the parties are given a signed copy of the Judgment, which they take to the Clerk of the Court. The Clerk affixed a seal on the document stating that it is a true and correct copy of the Judgment on file with the Court. The parties should put this sealed document in a safe place and use it whenever they need to prove that they are divorced, such as when they apply for a mortgage or refinancing.