What Is an Uncontested Divorce?

How Does an Uncontested Divorce Work?

Your divorce is uncontested if you and your spouse reach an agreement to end your marriage yourselves. It might be a matter of just resolving a few issues or it can be far more complex, depending on how long you were married, if you have children, and whether you’ve accumulated a lot of property and debts. 

All these factors must be addressed so a resolution can be presented to the court. In the case of an uncontested divorce, you’re not asking a judge to do anything but terminate your marriage because you’ve already reached a consensus on all issues. Your agreement must be committed to a written, signed, and notarized document.  

You must determine which of you is going to file the divorce petition and the grounds upon which you’re going to ask the court to end your marriage. Most states accept “irreconcilable differences” as grounds or some version of this concept. It effectively means, “Hey, we just don’t get along any longer. No one is to blame.”

Some states have “kits” available that help you do your uncontested divorce on your own. You do not need an attorney to file an uncontested divorce, but there may be situations where it could be advantageous. 

While you can handle an uncontested divorce either with or without a lawyer, but the same attorney can’t represent both you and your soon-to-be ex.

Example of an Uncontested Divorce

You and your spouse have only been married a few years, but you’ve realized that it was a mistake, so you decide to go your separate ways. You have one child together, who is a toddler. The two of you bought your home last year, and you’re carrying a joint mortgage on the property. You have $300,000 in outstanding debt, including credit cards and that mortgage. Neither you nor your spouse have any retirement assets yet, and minimal other property. 

With these factors, you reach an agreement that you’ll have custody of your toddler and the little one will spend weekends with your spouse. You agree to sell the house because neither of you can afford the mortgage on your own salary. The sale will pay off the mortgage and you’ll split any proceeds down the middle 50/50. You decide that you’ll take responsibility for paying half of the other marital debt, and your spouse will be liable for paying the other half.

You incorporate all this into a written, signed, and notarized agreement, and file it along with a divorce petition and any other required documents with your county court. A few months later, you’ll appear in court and a judge will terminate your marriage according to the terms you’ve agreed upon.  

Pros and Cons of an Uncontested Divorce

Pro Explained

• It’s less expensive: Paying an attorney to negotiate for you and appear in court on your behalf in a contested divorce can be pricey.
• It’s more private and less stressful: You won’t have to discuss the ins and outs of your life in a public courtroom, and you’re not putting your future into the hands of a judge who might order terms that you think are unfair or are uncomfortable with. 
• It can be quicker: The divorce process can be resolved by simply submitting your agreement and a divorce petition to the court, rather than attending various court appearances and required mediation sessions.

Cons Explained

• It can be inequitable in some cases: A spouse who’s had the upper hand power-wise throughout the marriage isn’t going to suddenly become more generous and flexible as you negotiate how to end it. An uncontested divorce can be inappropriate when domestic violence has been an issue, for example. Be realistic and cautious when choosing to work through a divorce yourselves.
• It can be difficult to reach an agreement: You might find it difficult to give up interest in something you really want, even if your divorce is amicable. Having a third party present, as is the case in a contested divorce, may be beneficial for some couples.
• It may not be appropriate for high-asset marriages: The legal intricacies of dividing up high-value assets or significant marital debt might be too challenging if you don’t have at least some background in personal finance or law.

Uncontested vs. Contested Divorce

Ideally, you and your spouse will reach an agreement without having to mediate or seek other assistance. This can significantly decrease the time it takes for you to get divorced. A contested divorce often requires multiple court appearances for motions to be heard and other issues to be addressed and resolved, and these must be scheduled, dragging out the process.

Many divorce attorneys bill their hourly time and expenses against a retainer fee you’ll have to place with the firm. That balance can deplete rather quickly if they have to spend a great deal of time unraveling and reaching a resolution of your issues, most likely with court involvement. 

How To Get an Uncontested Divorce

Achieving an uncontested divorce doesn’t mean you won’t have to deal with a fair amount of paperwork. The exact documents that will be required can vary by state, but some general practices are pretty common. 

File the Appropriate Paperwork

You or your spouse will have to file a complaint or petition for divorce to get the ball rolling. For example, New Jersey requires that you notify the court that your matter is uncontested, but you’ll still have to pay a filing fee. This usually runs in the neighborhood of $175 to $400.  

Many states require that the defendant spouse (not the spouse who files the petition) must then file an ancillary document called an “appearance” or an “acknowledgement of service.” This confirms that they’re in possession of a filed copy of the complaint or petition of divorce and that they, too, want the divorce and they won’t contest it.  

In a best-case scenario, you’ll already have reached an agreement as to how to end your marriage. The agreement must generally be incorporated into a property or marital settlement agreement that you’ll both sign and have notarized. You can file these documents with the court, along with a proposed final judgment or decree of divorce that incorporates the resolution you reached in your property settlement agreement. Some states will also require that both spouses submit a financial affidavit detailing their incomes, assets, and debts.  

TIP: You may be able to find preprinted forms for many of these documents on your state court’s website. If you choose to go that route, all you’ll have to do is fill in the blanks. 

Appear in Court … If You Must

Filing the appropriate paperwork might be the beginning and end of the process, particularly if you’ve been married for only a short time and you don’t have any children or numerous assets to deal with. You can ask the court to end your marriage “on the papers.” In this case, the court may simply mail you your final judgment of divorce.  

But you may have to appear in court in some states to solemnly swear under oath that you signed those documents and you’re comfortable with the resolution that you and your spouse entered into to end your marriage. Other states may require that only the spouse who began the proceedings must appear in court to finalize the matter. Minnesota, for example, requires one court appearance for an uncontested divorce if you have children or if either party isn’t represented by an attorney. Otherwise, no one has to attend a hearing. 

Frequently Asked Questions (FAQs)