If you and your spouse have discussed divorce and want to file an uncontested divorce, you may be confused about how the process proceeds. Most divorce cases involve going to court, holding hearings for property division and child custody, and having a judge make decisions about your case. However, if the divorce is “uncontested” and your spouse has no objections, do you need to do any of that? The Ventura divorce lawyers at the Law Offices of Bamieh and De Smeth explain what you need to do for an uncontested divorce or default divorce and how the case proceeds.
What Are the Steps for an Uncontested Divorce?
When you file for divorce, you typically serve the paperwork to your spouse and they get a chance to respond to the case in court. If there are no agreements in place, each side presents their cases for asset division, alimony, child custody and support, and other issues, potentially leading to disagreements and long court proceedings to figure out how to institute the divorce. In uncontested divorces, none of this debate or disagreement takes place.
Typically, instead of relying on the court to decide issues, these divorce cases are “uncontested” because the spouses work things out on their own. This usually means each party gets a lawyer and they meet to draw up agreements on the following:
- How to divide assets
- Whether a spouse will pay spousal support
- How much the spousal support will be
- Who gets custody of the children
- How parenting time is divided
- Who pays child support
- How much child support they pay
- Other issues related to finances and support
The final step is to take your agreement to court and have a judge approve it. Typically, judges will give their stamp of approval to uncontested divorce cases when both parties have been represented by counsel and have had the opportunity to discuss the case and come to an agreement.
In these kinds of uncontested divorce cases, you still must go to court to get the divorce finalized and get a copy of your divorce decree.
Can I Skip Going to Court in an Uncontested or Default Divorce?
If you are the one to file for divorce, you cannot avoid going to court. First of all, the process of filing the case requires you to go to court. After that, whether your spouse shows up to court or not, you will need to at least take your agreements to the judge for finalization. However, if the divorce was filed against you, you may legally decide not to show up at all.
Uncontested divorces are sometimes called “default” divorces, but the term default more accurately refers to a case where the respondent does not respond at all. In a case, the petition or plaintiff files with the court and gives the respondent or defendant notice of the case. If the defendant chooses not to appear after having good notice of the court date, the court can rule against them without hearing their side of the case. This is known as a “default” and is quite common in divorce cases. The terms “default” and “uncontested” are often combined in California since the respondent is not contesting anything if they don’t show up.
If you don’t want to respond to the divorce papers, you legally don’t have to. However, failing to respond means that you have absolutely no say in what happens in court and your spouse will have total control over all arguments and requests. Typically, this means you still will not receive less than 50% of your shared assets, but it means you have no chance to object to the division of certain assets or debts. It also means that the court will not hear your side of child custody or support arguments, and you may be seen as uninterested in sharing custody if you do not show up.
Rather than allowing a default judgment against you, it is better to work with an attorney who can represent your interests. If this means working details out with your spouse and their lawyer so that you can present an uncontested divorce, then your lawyer can still negotiate and advocate for your side. If you do not want to work with your spouse, you can contest the case in open court. Typically, either option is better than allowing a default divorce, since you get an opportunity to protect your finances, your civil rights, and your parental rights.
Going to court can be a hassle, but it is a necessary step in participating in your divorce case. Talk to an attorney about your options to avoid court as much as possible and negotiate divorce terms with your spouse out of court. Not only does this typically give you more control over the divorce, but it also typically means shortening the divorce proceedings in court and limiting your time in the courtroom.
Call Our Ventura and Santa Barbara Divorce Lawyers for a Free Consultation
If you are considering filing an uncontested divorce, talk to an attorney about what this means for the divorce process. If a divorce case has been filed against you and you are considering skipping the court appearance, talk to a Santa Barbara divorce attorney about the repercussions of this decision and how you can better protect your rights by filing an uncontested divorce and working out the divorce out of court. For a free legal consultation, call the Ventura family lawyers at the Law Offices of Bamieh and De Smeth today at (805) 643-5555.