Uncontested Divorce Actions

In general, uncontested divorce actions occur when either of the spouses does not appear in court in a divorce proceeding or when both the spouses mutually agree upon a divorce and on matters relating to financial settlements, custody, and/or support of their minor children. Typically, that mutual agreement is shown in the divorce petition, and it may include a waiver of service. Uncontested actions may arise in proceedings for dissolution of marriage, annulment, and separation.

An uncontested divorce proceeding can be an efficient, simple, and economical way to handle marriage dissolution. Most states require that one of the spouses be a resident of the state where the action is filed for a prescribed period before the petition is filed.

In cases where the defendant appears before the court and both the parties agree on all issues, the court usually will enter a divorce decree based on the petition and/or the plaintiff's statement.

If the defendant does not appear before the court, the court may grant divorce relief against the defendant. Personal jurisdiction over the defendant may be required if the court is deciding financial and other related issues that would affect the defendant. The defendant usually may waive personal jurisdiction and service of process in an uncontested proceeding.

In the absence of personal jurisdiction, a court may terminate the marriage, but usually cannot determine issues pertaining to dividing property, alimony, and child support. However, under the provisions of the Uniform Child Custody Jurisdiction Act, the court often can establish custody of the spouses' minor children.

Generally, if the defendant does not appear in court in a divorce proceeding and has an unknown address or is living in another state, the requirements of the Soldiers and Sailors' Civil Relief Act must be satisfied. That requires the plaintiff to affirm in the verified complaint that neither of the parties is a member of the armed forces and to sign the complaint in front of a notary public.

No-fault divorce often is alleged as the ground for uncontested divorce actions. In no-fault actions, parties seek divorce on the ground that the marriage has broken down irretrievably or that they have lived separately for a period required by the state's law.

Many states provide free forms that parties may use to file uncontested divorces. For truly simple divorces and divorces in which the parties fully agree on all issues, these forms can allow the parties to process the divorce at the lowest cost possible and with a minimum of formality.

Copyright 2011 LexisNexis, a division of Reed Elsevier Inc.