Tips on Final Hearing Uncontested Divorce

By Rob Jennings J.D.

With the advent of no-fault divorce in many states, obtaining an absolute divorce has become a far less complicated process than in years past. Often, you need only comply with your state's mandatory physical separation period before you are eligible to obtain your divorce. Because of the simplicity of the requirements, many couples choose the uncontested route to divorce.

With the advent of no-fault divorce in many states, obtaining an absolute divorce has become a far less complicated process than in years past. Often, you need only comply with your state's mandatory physical separation period before you are eligible to obtain your divorce. Because of the simplicity of the requirements, many couples choose the uncontested route to divorce.

Type of Uncontested Divorce

Uncontested divorce can mean one of two things. On one hand, it can mean a default proceeding where your spouse failed to deny the allegations of your absolute divorce complaint. In these cases, often only the petitioner appears to testify at the final hearing. The term can also refer to the process of resolving the many issues arising out of a marital breakup -- such as child custody and support, spousal support and dividing marital property -- without fighting. Parties are often able to settle these issues by agreement. Before signing, the judge may question you and your spouse to make sure that you understand what you're signing and that you're doing it voluntarily.

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Divorce by Default

If your spouse fails to respond to your complaint, or petition, he is "in default." While you might have to appear in court and testify, the testimony you'll be presenting is fairly rudimentary. Review your state's statute on divorce and familiarize yourself with your petition to figure out exactly what you need to present in order to enable the court to enter a judgment of divorce. In most states, the spouse who is in default can appear at the final hearing to state his case even though he failed to respond earlier. If he doesn't appear, the court will probably award the petitioner everything she has asked for.

Representing Yourself

In an uncontested divorce, you'll usually need to draft a petition and summons, file them with the court and get them served on your spouse in accordance with your state's civil procedure code. Once her time to answer expires, you would then typically serve her with notice of the hearing before proceeding to court. There, the testimony required is typically brief -- you may be required to testify to little more than the dates of your marriage and separation, reason for seeking divorce and the names and ages of your children. If the two of you enter into a consent agreement, you might only have to testify that the agreement is voluntary and that you have met all residency requirements. Some states may require you to bring witnesses to substantiate issues such as residency and separation.

Alternatives

Some states allow for a streamlined divorce proceeding before the clerk of court or magistrate. Some states will also allow you to obtain a judgment of divorce by default or something called a "summary judgment" motion. In summary judgment, you file a motion with the court stating that the other side has failed to plead and that there is therefore no genuine issue of material fact to be decided by the court. These streamlined procedures aren't available everywhere; some states require a hearing no matter what.

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Motion of Default in a Divorce in Illinois

References

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