NO-FAULT AND UNCONTESTED DIVORCES
People contemplating filing their own divorce often become puzzled by the terms used in filing, particularly no-fault and uncontested divorces. Most divorces today are both no-fault and uncontested and a significant amount of these are file with the court without a lawyer involved.
No fault and uncontested divorces do involve allegations of marital fault and do not have disputed issues to resolve, which is why they are easier on the spouses emotionally and easier to file on your own.
A no-fault divorce is where the petitioner or plaintiff, who is the filing spouse, does not allege or have to prove any fault on the part of the other spouse. All the filing spouse must do is give the appropriate no-fault divorce ground (these vary by state), such as irreconcilable differences or an irretrievable breakdown of the marriage. These grounds mean the couple no longer gets along and that the marital relationship is hopelessly fractured. The other spouse, who is called the respondent or defendant, does not object to the grounds of another's petition or complaint filed for a no-fault divorce.
All states recognize no-fault divorce, but some states require that the spouses live separately for a certain amount of time before either of them can officially file with the court.
California was the first U.S. state to pass a no-fault divorce law. Signed by Governor Ronald Reagan, the measure took effect on January 1, 1970. New York became the last state to pass a no-fault divorce law; that law was passed in 2010. Before no-fault divorce was available, spouses seeking divorce frequently alleged false grounds. Removing the incentive to perjury was one motivation for the no-fault movement.
In 17 states and the District of Columbia, a party can only file for divorce on no-fault grounds; in these jurisdictions, the laws do not include fault. Pure no-fault states are Wisconsin, Washington, Oregon, Nevada, Nebraska, Montana, Missouri, Minnesota, Michigan, Kentucky, Kansas, Iowa, Indiana, Hawaii, Florida, Colorado and California.
In the other 33 states, a party can choose no-fault grounds but also can file on traditional fault grounds. These states added a no-fault route to their fault laws rather than eliminating the fault entirely. Several states also offer a third option, a hybrid between a fault and no-fault divorce. This third option is living separate and apart for a certain length of time. Time requirements range from two months in Kentucky to 18 months in Connecticut and two years in Hawaii. Even some pure no-fault states, including Wisconsin, Washington, Nevada, Montana, Kentucky, Hawaii and the District of Columbia, recognize separation-based divorces in addition to their other no-fault options.
In the states that recognize fault, one of the spouses must request that a divorce be granted based on some fault in the other spouse. The most common grounds are adultery, abandonment, incarceration, impotence, and cruelty. Proving any of these defenses can be costly, timely, and often involves witnesses. Furthermore, courts have no interest in forcing people to stay married who don't want to be married. Judges usually grant divorces to people who ask, despite defenses given by the other spouse. These reasons typically discourage people from attempting defenses to a divorce filed on fault based grounds.
No state requires the spouses seeking a fault divorce to live apart for a specific period of time, unlike a no fault divorce. In certain states proving fault sometimes provides the spouse without fault with a larger portion of the marital property or support. This is referred to as marital misconduct and can be considered by the court according to specific state laws.
There are two kinds of divorces - contested and uncontested. A contested divorce is one in which the parties cannot agree, either about getting divorced or about the terms of the divorce, such as the division of assets, allocation of debts, alimony, child support, or the custody of children. In an uncontested divorce, the spouses agree on everything and do not need the court to divide assets or make determinations about spousal, child support, or custody.
In general, an uncontested divorce proceeds through the court system more quickly and is much less complicated and less of a financial or emotional burden. Uncontested divorces are generally available to couples who have no remaining disagreements regarding the terms and conditions of their divorce.
When both members of a couple agree to divorce, filing for an uncontested divorce can save time and money through streamlined court procedures.
Like a contested divorce, an uncontested divorce begins by one side filing for divorce. Often couples begin a contested divorce and then, before the actual trial, reach agreement. Only about 5 percent of the divorce actions end with the two spouses standing before a Judge at a trial. This being said almost all divorces end up being uncontested because of the financial and emotional expense.
One of the biggest advantages of an uncontested divorce is that neither spouse will appeal it, because both by definition agree to it and thus are presumably happy with it. Both parties can therefore be assured of finality by an agreement memorialized in such a way that it makes the settlement legally binding and enforceable. This is typically done by preparing and signing a Marital Settlement Agreement and incorporating it into the Final Judgment or Decree of Divorce.
If the other side agrees to the uncontested divorce, or fails to make an appearance, the court can grant the uncontested divorce. If the other spouse does not agree and makes the necessary court filings, an uncontested divorce cannot be granted and it essentially becomes contested and proceeds down a more difficult path with the court
Uncontested means both spouses agree to get a divorce and agree on the terms of equitable distribution. No-fault divorce means neither spouse must prove the other did anything wrong.
A couple that agrees about the terms and conditions of their divorce are normally suited to file for no-fault divorced that neither contests. Such a couple may find filing their own divorce without a lawyer appealing since their divorce lacks the complexities of contested actions.
An uncontested divorce also allows many couples to get their divorce granted more quickly than in a contested divorce. With fewer proceedings and less legal wrangling, uncontested divorce allows couples to more quickly move on with their lives.
Though divorce of any sort often involves some conflict, an uncontested divorce can lower the amount of conflict between the parting spouses by simply offering fewer opportunities for conflict to arise. With fewer demands for information going back and forth, and fewer proceedings to resolve disputed elements of the divorce, conflict between the soon-to-be exes can be minimized. And in no-fault actions there is nothing to prove in regard stop wrong doing, which can be the most heated part of any ending marriage.
Unless filed under seal (which is not easy), information made part of a divorce becomes open to the public. This means that not only personal information one side alleges about the other, but also financial and other private information become public. In an uncontested divorce, there is simply less information filed with the court to go into the public record. This can allow spouses who agree to an uncontested divorce to minimize the amount of private information available to the public.