Contested and Uncontested Divorce Resources

At the heart of every divorce are four issues:

1. Division of community and/or marital property
2. Division of debt
3. Custody of any children
4. Payment of child and/or spousal support

While no divorce is truly "uncontested" in the sense that there are no disagreements, these disputes do not always have to be resolved in court. That's what we mean by an uncontested divorce - one where the spouses can reach a decision as to the terms of the divorce without going to trial. Uncontested divorces move more quickly through the courts and are less expensive than contested divorces.

Every couple seeking a divorce should first attempt to work out mutual terms for the separation without going to court. If the spouses cannot resolve disputes on their own, many people utilize arbitration and mediation, with or without attorney representation. This saves time and money by bypassing the lengthy litigation and trial process. An uncontested divorce typically reduces hostility, allowing both parties to resume their lives more quickly.

Complex issues, high financial stakes and technical legal procedures are the marks of contested divorces. While an uncontested divorce can often be performed without an attorney, litigation often makes experienced counsel necessary for a contested divorce. If one spouse is represented by an attorney or there are difficult financial issues, seeking an attorney may be wise.

 

Legal Requirements for Divorce

Under most state laws, a divorce (or "dissolution") action must be filed and decided in court. All states have a "no-fault divorce" policy. In other words, the courts are not concerned with which spouse was guilty of marital misconduct.

The following legal requirements are necessary to file for divorce in most states:

Residency: The spouse filing for divorce must have resided in the state and county for a certain period. Six months is a common state requirement, and three months is typical at the county level.

Waiting Period: Most states have a mandatory waiting period from the filing to the finalization of a divorce. In other words, you cannot file and finalize a divorce on the same day. The average waiting period is 6 months but can be anywhere from 0 to 12 months. After the waiting period, the divorce is finalized and both parties are free to remarry.

Legal Grounds: States generally recognize two legal grounds for divorce: (1) irreconcilable differences and (2) separation. "Irreconcilable differences" simply means there are marital difficulties that cannot be reconciled and have led to the permanent breakdown of the marriage.

Jurisdictional Requirement: An action for divorce must be filed with the proper court. The appropriate court is typically in the county where either the wife or husband has resided for at least 3-6 months prior to filing for divorce.

 

The Divorce Process

A divorce starts with a divorce petition. The petition is written by one spouse (the petitioner) and served on the other spouse. The petition is then filed in a state court in the county where one of the spouses resides. It does not matter where the marriage occurred. The petition includes important information regarding the marriage. It names the husband, wife and any children and states if there is any separate property or community property, child custody, and child or spousal support.

The petition (or the divorce papers) must be served on the other spouse. This phase of the process is called "service of process." If both spouses agree to the divorce, the other spouse only needs to sign an acknowledgement of the receipt of service. However, if the other spouse refuses to sign or is difficult to locate, you can hire a professional process server to personally deliver the papers.

Completing service of process starts the clock running on your state's waiting period. It also sets automatic restraining orders on the spouses and helps establish the date of separation. At this point, the spouses are not permitted to take any children out of state, sell any property, borrow against property, or borrow or sell insurance held for the other spouse.

The other spouse is known as the "respondent." Although it's not required, the respondent can file a response to the petition saying he or she agrees. Filing a response shows both parties agree to the divorce. This makes it more likely the case will proceed without a court hearing, which could delay the process and cost more. Generally, if a response is not filed within 30 days, the petitioner can request that a default be entered by the court. The responding spouse can also use the response to disagree with information presented in the petition.

Both spouses are required to disclose information regarding their assets, liabilities, income and expenses. If the divorce is uncontested and the spouses can agree on the terms of the divorce, there is only a bit more paperwork to file. Once the court enters the judgment, the divorce is final. However, the marriage is not formally dissolved and the spouses cannot remarry until the end of the state's waiting period. If there are disputes that cannot be resolved, court hearings and maybe even a trial will be required.

 

Custody of Minor Children in a Divorce

Both parents must decide on the custody of minor children under the age of 18. Divorce courts are concerned about the well-being of any children born naturally or adopted by the parents.

There are four basic types of child custody recognized under state laws:

Sole Physical Custody: Sole physical custody means the children shall reside with and under the supervision of one parent. The court must approve the parent's plan for the other parent's visitation rights.

Joint Physical Custody: Joint physical custody means each of the parents will have significant periods of physical custody. In other words, both parents will have more or less continuing contact with the children.

Sole Legal Custody: Sole legal custody means one parent shall have the right and responsibility to make decisions about the health, education and welfare of the children. The other parent retains visitation rights. Although the courts favor joint legal custody, sole legal custody is the most common custody arrangement.

Joint Legal Custody: Joint legal custody means both parents share the right and the responsibility to make decisions about the health, education and welfare of the children. The law presumes that joint legal custody is in the best interest of minor children when the parents can make it work and submit a workable "parenting plan." However, joint legal custody is not always easy. It requires both parents to cooperate and lay aside all differences.

Visitation Rights in a Divorce

In recent years, lawmakers have realized visitation rights do not translate easily into laws. The law does state that any person having an interest in the children's welfare is entitled to reasonable visitation. What is reasonable in one circumstance is not necessarily reasonable in another. That's why parents are left to define reasonable visitation standards for grandparents and others.

 

Child Support in a Divorce

Child support is mandatory in any divorce involving minor children. Petitioners with minor children must include an order for child support, even if the other parent is unemployed or cannot be found.


Most state laws have guidelines to determine child support payments. The payment amount is based on each parent's income and the amount of time he or she spends with the children. The guidelines also provide for add-on amounts for the following expenses:

Child care

Health care and health insurance

Special educational or other needs

Travel-related visitation

Parents can increase or decrease the guideline amount if the following conditions are met:

Both parents acknowledge they are fully informed of their rights under state law and the amount of child support is mutually agreed on,

Both parents declare the agreed upon amount is in the children's best interests and will adequately meet their needs, and

For welfare recipients, the right to support has not been assigned to the county, and neither parent has a public assistance application pending.

Keep in mind that the judges presiding over divorces are the ultimate authority on child support decisions. They can deviate from the guidelines as they see fit.

Child support orders can be modified at any time. Special circumstances or income changes are just two reasons to revisit child support payments. The parties can agree in writing to the changed amount or can file a motion with the court. After the divorce is finalized, you should consult an attorney to change the amount.

Any order for child support payments typically includes an order for the assignment of wages. Child support payments usually begin when the judgment dissolving the marriage will be signed by the court, even though the parties will not legally be divorced until after the waiting period. If the judgment is delayed, you can file an application with the court to rush the payment of child support. You should seek an attorney if this is the case.

If a parent does not pay child support or is significantly late, he or she can be sued for contempt of court, have wages or tax refunds attached, or have his or her driver's license blocked. These actions should be handled by an experienced attorney.

 

Spousal Support (Alimony) in a Divorce

Spousal support, as it is now commonly called, used to be known as "alimony." Spousal support is not mandatory in most states but can be ordered by a judge under certain circumstances.

If a spouse will face hardships without financial support, spousal support should be considered. The deciding factor for spousal support is the need to maintain the spouse at his or her customary standard of living. In other words, the law recognizes a husband or wife should not be forced to live at a level below that enjoyed during the marriage.

However, other factors also need to be considered. For example, spousal support should most likely not be considered if:

The marriage was for a short duration (less than two or three years), and

Both spouses are employed and self-sufficient.

This does not mean the parties cannot agree on spousal support. Spousal support has variable timeframes. It can be (1) for an unlimited period, (2) subject to the death or remarriage of the recipient spouse, or (3) fixed to end on a specific date.

Child support payments do take priority over spousal support. There is no firm dollar figure for spousal support. The amount should be decided by both parties. Some common ways of calculating spousal support are to take up to 40% of the paying spouse's net income (post-child support), less 50% of the amount of the supported spouse's net income (if he or she is working).

Spousal support can be waived by the recipient spouse. However, the waiver should be in writing and signed by both spouses.

 

Marital Settlement Agreements in a Divorce

A marital settlement agreement spells out the terms of the divorce and the relationship between the two spouses after the divorce. These agreements usually cover property division, child custody, child plans, debt division, spousal support and any other relevant issues related to the divorce.

While it is not required, filing a marital settlement agreement does have advantages:

Lays out all of the agreements in writing, limiting uncertainty.

The spouses may not have to go to court. The judge might honor the written agreement if it's written correctly and covers all material aspects of the divorce.

Proves to the court that major issues were thought out, and the case will move more quickly though the system.

Marital settlement agreements can be entered into at any time before the final judgment. They are typically filed with the final judgment.

If a spouse is receiving welfare, the District Attorney's office may need to review and sign the marital settlement agreement before it is filed with the court.

 

Comparing Equitable Distribution and Community Property for a Divorce

To understand how your state's laws can affect your divorce settlement, it is important to know the difference between equitable distribution and community property.

Most states follow equitable distribution laws. In these states, property acquired during the marriage belongs to the spouse who earned it. In case of divorce, the property will be divided between the spouses in a fair and equitable manner. There is no set rule in determining who receives what or how much. The court considers a variety of factors. For example, the court may look at the relative earning contributions of the spouses, the value of one spouse staying at home or raising the children, and the earning potential of each. A spouse can receive between one-third and two-thirds of the marital property.

Community property is observed in the following states: Alaska (by agreement), Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin.

In a community property state, the spouses are deemed to equally own all income and assets earned or acquired during the marriage. This means that both the husband and wife are deemed to equally own all money earned by either one of them during the marriage, even if only one spouse is employed. In addition, all property acquired during the marriage with "community" money is deemed to be owned equally by both the wife and husband, regardless of who purchased it.

In a community property state, equal ownership also applies to debts. This means both spouses are equally liable for debts. In most cases, this includes unpaid balances on credit cards, home mortgages and car loan balances.


Community Property and Separate Property in a Divorce

One of the primary issues in a divorce is how to split up community property assets. Community property is everything that a husband and wife own together. California, for example, is a community property state. This means both the husband and wife equally own all money earned by either one of them from the beginning of the marriage until the date of separation. In addition, all property acquired during the marriage with "community" money is owned equally by both the wife and husband, regardless of who purchased it.

Like community assets, all debts contracted from the beginning of the marriage until the date of separation are community debts. Therefore, each spouse is equally liable for debts. In most cases, this includes unpaid balances on credit cards, home mortgages and car loan balances. It is important to close out all credit cards, bank accounts, and "joint" accounts as soon as possible after a divorce has been decided. It is not enough to remove names from the account.

Separate Property

Separate property, on the other hand, is everything a husband and wife own separately. Separate property does not need to be divided between the spouses. In most cases, separate property includes:

Anything owned prior to marriage

Anything inherited or received as a gift during the marriage

Anything either spouse earned after the date of separation

Separate property can also include anything that one spouse gives up to the other spouse in writing. In certain cases, separate property can become mixed with community property. When this occurs, it is important be able to trace the payments and show where the separate and community money came from. For example, a husband may have contributed the down payment for a house, got married, and then paid off the mortgage with community property. In this case, the husband would be reimbursed for the down payment if he could prove his separate funds were used to pay it.

Similar to separate property, separate debts belong to one spouse. All debts incurred before marriage are separate debts. For example, educational loans or job training loans incurred before marriage would be separate debts.

Date of Separation

In some states, the date of "separation" is the date when both husband and wife decide to terminate the marriage. In others, it's considered the date when one of the spouses moves out of the marital home. This is a very important date because it marks the end of when property is characterized as community property. Unfortunately, the date of separation is subjective and often open to debate. The courts will look for physical evidence of a final breakdown, such as moving out of the house.

 

Retirement Benefits in a Divorce

Accrued or vested retirement benefits are community property. This means they need to be divided in a divorce. Retirement benefits that fall under community property include military pensions, veteran's educational benefits, ERISA funds, IRAs, Keoghs, Employee Stock Option Plans (ESOPS), 401K and 403K plans, etc.

Certain retirement benefits are not classified as community property. They include:

Social Security payments

Compensation for military injuries

Worker's compensation disability awards

Regardless of the length of the marriage, retirement benefits should be discussed and settled. For example, the petition, marital settlement agreement and judgment should all provide either for the spouse's waiver of retirement benefits or the division of any such benefits. A spouse should waive retirement benefits only if that spouse's share is worth very little.

There are two options for dividing retirement benefits: (1) the present-day valuation buy-out, and (2) division into two accounts. In the former, the spouse without the retirement benefits takes the present-day value of his or her interest in the retirement benefit and trades it for something else of equal value, such as cash or other assets. Stock options and pension plans where a person must work for a certain number of years may be worth more than you think. It may be advisable to hire a professional pension actuary or appraiser before making a decision.

When dividing a retirement account, you want to make sure you don't lose any tax advantages. A Qualified Domestic Relations Order (QDRO) will be required to transfer a share of retirement funds from the spouse participating in the retirement plan to the other spouse. Please contact the retirement plan administrator or a qualified attorney for more information regarding QDROs.

 

Tax Implications of a Divorce

Divorce can be challenging, particularly when it comes to tax time. Which spouse owes taxes? What forms and returns need to be filed? When do I need to file? How do I file? What is the best tax planning strategy for my divorce?

Tax Filing Status

A taxpayer will be considered unmarried at the end of a tax year if his/her spouse is legally separated from the taxpayer under divorce decree or separate maintenance contract at the close of the tax year.

A married taxpayer will be considered unmarried and eligible for head of household status if the taxpayer's spouse was not a member of the household for the last six months of the year and the household is the home of a dependent child.

Liability on Joint Return

You may request relief from liability for tax, plus related penalties and interests for which you believe that your spouse (or former spouse) should be liable.

Innocent Spouse Relief is available if you: (1) filed a joint return and (2) are no longer married to (or are legally separated from) the spouse with whom the joint return was filed.

Dependency Exemptions

In general, the dependency exemption for children of divorced taxpayers will go to the parent who has custody of the child for the greater part of the calendar year.

Alimony and Spousal Support

In general, alimony and separate maintenance payments are income to the recipient and are deductible by the payer. Different rules apply to alimony that went into effect prior to 1985.

If you have specific questions about the tax implications of a divorce, you should speak to a licensed tax expert.

 

Other Issues Affecting Divorce

DISCLOSURE: The law requires both spouses to provide the other with all information related to their property, income, assets and debts. This is called Full Disclosure. Failing to fully disclose all relevant information or concealing information can have serious consequences. It's important to be precise in listing assets and debts.

HEALTH INSURANCE: Unless it is agreed upon and included in a marital settlement agreement, one spouse covered by health insurance is not required to pay health insurance premiums for the other spouse after divorce. However, the spouse without coverage has the right to continue the insurance coverage at his or her own expense for up to 3 years at the same or similar rates. To take advantage of this right, the non-covered spouse must notify the other spouse's insurance plan administrator within 90 days of the final judgment.


FILING COST: Mandatory court filing fees for divorces average $100. If a response is filed, an average of $100 will also be required.

ALIENS and NON-U.S. CITIZENS: Resident aliens who divorce less than two years after marriage may lose resident status. In addition, any children may be deported. Consult an attorney for more details.

CONFIDENTIAL COUNSELING: Some counties have a Conciliation Court. These courts are designed to provide free or inexpensive counseling for couples who want it. Your first visit is usually free, but counseling is never mandatory.

COMPLEX ISSUES: If your divorce involves complex issues, you should seek an attorney or other professional to assist you. Examples of complex issues include:

Assets and Debts

One spouse transferring assets to themselves without permission

An unequal division of assets

Assets being sold without permission

The possibility of hidden assets

Valuing stock options and pension plans which require a certain length of employment

Excessive debt

Considering bankruptcy

 

Spouses

Immediate threat of harm to you or your children

One spouse does not agree that a child is theirs

You and your spouse cannot agree to divide property or decide on the best interest for your children, even after numerous attempts

Active military service

Failure to agree on a date of separation

One spouse putting the other through school or training

 

Divorce Procedures in Your State

As you probably already know, divorce is handled differently in every state.

For example, states differ on the residency period (the amount of time you or your spouse must live in a state before you can file for divorce).

Some states also have a waiting or "cooling off" period. This is the amount of time that must pass between your separation and the finalization of the divorce.

Specific Forms Each state's court system also requires specific divorce forms. Following your state's specific procedure is critical.

Fortunately, when you file an uncontested divorce through LegalZoom, we take care of state-specific requirements.

However, if you're interested in how your state handles divorce, including information on divorce with children, types of divorces, and spousal issues, please click on your state for an overview.

 

New Jersey Divorce

A New Jersey divorce, or dissolution of marriage, can be filed by either spouse to end the marital relationship. Upon doing so, the parties are restored back to single status. The court will also issue any necessary orders for child support and custody, alimony (spousal support) and the division of marital and separate assets and debts. LegalZoom can assist you in the document preparation and filing for your uncontested New Jersey divorce without the expense of an attorney.

Types of Divorce in New Jersey

Uncontested Divorce in New Jersey

An uncontested divorce in New Jersey, in which both parties have come to an agreement on all major decisions related to any property or minor children, generally proceeds faster than one in which issues remain in dispute. The Plaintiff spouse may file for a default judgment in situations where the Respondent has filed a waiver and acknowledgment of service.

Alternatives to Divorce in New Jersey

A legal separation can be filed by a married person who wishes to maintain the marriage but physically separate and try to resolve any problems in the marriage.

An annulment is sought in order to nullify the marriage and disavow its existence, returning the parties to their prior single status, as if they never married. Annulments are most often sought by people who feel stigmatized by the status of being divorced, or for ease of remarriage in their particular religion. If there are children born of the marriage, an annulment may not be granted, and the marriage may only be dissolved by divorce.

 

New York Divorce

A New York divorce, or dissolution of marriage, can be filed by either spouse to end the marital relationship. Upon completion of a New York divorce, the parties are restored back to single status. The court will also issue any necessary orders for child support and custody, alimony (spousal support) and the division of assets and debts. LegalZoom can assist you in the document preparation and filing for your uncontested New York divorce without the expense of an attorney.

Types of Divorce in New York

Uncontested Divorce in New York

A divorce is uncontested if: (1) you and your spouse can agree on financial and divorce-related issues such as property division, alimony and child support, and (2) your spouse agrees to the divorce or fails to appear in the divorce action.

On the other hand, a divorce is contested if you and your spouse cannot agree on enough issues to require resolution by the court.

Summary Divorce in New York

A divorce in New York may be granted in less time through a summary divorce process. The requirements are:

there is a written separation agreement or decree, the spouses have lived apart for one year, and the court is satisfied with proof that the Plaintiff spouse has substantially performed all terms and conditions of the agreement or decree.

Generally, a financial disclosure must be filed in every action for divorce in New York

Alternatives to Divorce in New York

A legal separation can be filed by a married person who wishes to maintain the marriage but physically separate and try to resolve any problems in the marriage. In New York, a separation (and written separation agreement) is required for at least one year before a spouse may proceed in a divorce action. Typically, the filing of the divorce complaint is the date of legal separation.

An annulment is sought in order to nullify the marriage and disavow its existence, returning the parties to their prior single status, as if they never married. The state permits this on several grounds, such as fraud or legal incapacity. The person seeking the annulment has the burden of proving to the court that one of the conditions of nullity has been met in order to have the annulment approved. Annulments are most often sought by people who feel stigmatized by the status of being divorced, or for ease of remarriage in their particular religion.

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