If you are considering filing for a divorce, you might have heard of the term “uncontested divorce.” Generally, an uncontested divorce is when both spouses are in agreement about the issues arising in a divorce. This means you have agreed in advance about how to divide up assets and debts that arose during the marriage, how to address any issues regarding child support and child custody, and whether spousal support will be payable.
Another type of uncontested divorce is when one spouse files for divorce and the other spouse fails to respond, thereby receiving a default judgment. One spouse’s failure to respond does not stop the divorce proceedings. Instead, the nonresponsive spouse has to accept the conditions contained in the dissolution petition.
Should You File an Uncontested Divorce?
Whether an uncontested divorce makes sense for you depends on your particular situation. If you have only a few assets, such as a car and bank accounts, and were not married for a long period of time, an uncontested divorce could be a reasonable solution. However, an uncontested divorce will be less likely if the marriage ended on bad terms, there is a significant amount of property or debt, both you and your spouse want to keep the family home after the divorce, you disagree with your spouse about the custody and visitation rights of your children, or there is a dispute about whether property should be legally defined as separate or community property.
When you cannot reach a settlement with your spouse about the issues in your divorce, you will need to have a contested divorce filing where the court will make a final decision in your case.
When you receive your final divorce judgment, it can be very difficult to change any property agreement except in a few instances. For example, if assets were not included in the divorce judgment, it may be modified. There are strict time limits for setting aside a property judgment if there was mistake, fraud, duress, mental incapacity, or a failure to comply with disclosure requirements.
As such, you need to think carefully before making an agreement with your spouse concerning how property will be divided in your divorce. It is helpful to speak with a knowledgeable divorce attorney to understand whether an uncontested or contested divorce would be most beneficial in your case.
Filing for an Uncontested Divorce
You can file for a divorce on the basis of irreconcilable differences between the spouses, or for the reason of legal incapacity. In California, you do not need to give a specific reason for why the marriage ended. You will need to have lived in California for the last six months to be able to file a divorce here.
There are still mandatory disclosure requirements even with an uncontested divorce. This is because you have a right to know what property and debts your spouse acquired during the marriage, and you need full disclosure in order to make an informed decision about your divorce settlement. You will need to disclose all of your assets and debts in which you or your spouse has an interest. This includes property such as a home, cars, retirement accounts, credit card accounts, and bank accounts. You will also need to disclose the income and expenses that belong to at least one of the spouses, along with certain tax returns. However, parties in an uncontested divorce may be able to waive filing a final declaration of disclosure.
A child support agreement must conform to certain legal requirements for a court to sign the order. You will need to consider which spouse will provide health insurance for the children, how child care and school expenses will be divided, and what type of visitation plan will work in your situation. A custody judgment or visitation order can be modified after a final divorce judgment if there has been a significant change in circumstances and it will be in the best interest of the children.
In addition, there are several factors to consider when deciding whether to provide a spousal support payment. This includes how long the marriage lasted; the standard of living of each spouse during the marriage; the potential earning capacity of each spouse; whether a spouse helped the other spouse with attaining education, a career, or a professional degree; and whether a spouse stayed at home to take care of the children. For an uncontested divorce, you will need to agree on the amount of the spousal support payment, how long the support payments will last, and how these payments will be made.
The court will want to make sure that all of these agreements in an uncontested divorce were made voluntarily, and that neither spouse was forced to agree. It will take at least six months before your divorce can become final.
You can contact our divorce attorneys for further information about filing for an uncontested divorce in Orange CA.