Marriage is a beautiful thing, but the sad reality is that some couples find out later on that the vow “for better, for worse” is much easier said than done. It is estimated that 40-50% of first marriages and 60% of second marriages in the U.S. end in divorce. If you and your spouse have decided to go your separate ways, one intricate task lies ahead – filing for divorce. An uncontested type of divorce is ideal if you are both on the same page about financial or divorce-related issues. Here’s a detailed guide to undergoing an uncontested divorce in San Diego.
What is an uncontested Divorce?
An uncontested divorce is a type of divorce where a divorcing couple agrees amicably about the final divorce settlement without necessarily going to trial. Ideally, this type of divorce is less costly compared to the litigated case and hence recommended. While the terms of a contested divorce are decided by a judge, the terms of an uncontested divorce are decided by the divorcing couple. A divorce is considered “uncontested” in San Diego when:
- Divorcing couple completes the compulsory requirements for a ‘default with an agreement’ after arriving at an agreement that satisfies them both
- No reply is filed and a ‘true default’ is taken and the other spouse doesn’t counter or play any part.
Major Issues Resolved in an Uncontested Divorce
There are various financial and divorce related issues that must be agreed upon when filing for uncontested divorce. They include:
- Property division
- Debt division
- Spousal support
- Child support
- Child custody
Factors that Differentiate Contested and Uncontested Divorces
Cost is a factor that draws a huge difference between contested and uncontested divorces. In a contested divorce, a divorcing couple can incur $500 per hour or more in legal fees. They can end up spending tens-of-thousands of dollars by the time they arrive at a decision that they are both happy with. In an uncontested divorce, a divorcing couple does not have to pay an attorney’s hourly fee as lawyers usually charge a flat fee, which is much less compared to the cost of a contested divorce.
Divorcing in court is not only costly and time consuming, but it also puts the spouse’s entire life and marriage on public display. Family secrets are put out there, some of which can hurt both or either of the spouses and their children. Besides saving both money and time, uncontested divorces also enable splitting couples to end their marriage quietly and with dignity.
Contested divorces are usually dramatic and very hurtful since both spouses try hard to get as much as possible from each other. This hurts the emotional well being of everyone involved, most especially the children. The advantage with uncontested divorce is that both spouses agree amicably on all matters regarding the divorce. This helps them to avoid the stress that is usually associated with contested divorces.
Spouses of uncontested divorces are prone to less conflict after the divorce. The good cooperation between the spouses leads to better parenting since they are able to do what’s in the best interest of the children.
In a contested divorce, the judge has full control of the agreement. Since the judge does not know how sentimental the marital assets are to both spouses, he may not know precisely how to fairly split everything up. The good thing about an uncontested divorce is that it puts control of the agreement on the spouses’ hands, enabling them to get exactly what they want.
Uncontested divorces may not be as quick as some splitting couples may prefer, but they are quicker compared to contested divorces. While uncontested divorces can be completed within a few months, contested divorces can last for years. Furthermore, couples undergoing divorce in San Diego can go through the “One Day Divorce” program, which is only available to litigants who have no contested issues surrounding their divorce.
Note that when it comes to divorces, San Diego has a six-month waiting period required by California law. The waiting period is mandatory and applies to all divorces in California, regardless of whether a divorcing couple goes through a contested divorce, uncontested divorce, or the “One Day Divorce” program.
When Uncontested Divorce May Not Be Ideal
There are several instances where contested divorce may be more ideal than uncontested divorce. They include:
- When one spouse is abusing the other physically, emotionally, or manipulating the other in some sort.
- When the divorcing spouses are not able to agree amicably about certain elements of the divorce.
- When one spouse is vested in taking a larger share of the family assets or keeping certain properties or items.
When to Seek Help from a Divorce Attorney
While it is possible for you to file for an uncontested divorce alone, there are several instances where you may require the help of an attorney. These instances include:
- When you are not capable of serving your spouse with the divorce summons personally.
- When you are not sure whether you have grounds for divorce.
- If you already have a foreign divorce, i.e. one granted outside the state of California.
- When there is another matrimonial action pending.
- If there are underage children involved and there is the issue of custody or support.
- When you and your spouse aren’t capable of working through the paperwork.
- When the spouses do not meet the requirements for filing for divorce.
You should know that lawyers who work on uncontested divorces do not represent both spouses. The ethical principles for lawyers require that a lawyer represent just one spouse basically because both spouses have their own unique interests. It is, therefore, important for you to let the lawyer know beforehand who between you and your spouse is his/her client.
Advantages of Hiring a Lawyer
The process of filing for an uncontested divorce may be relatively straightforward, but it may be a bit intimidating. This is because it requires the divorcing couple to read and understand various forms that include fairly in-depth financial disclosures. A lawyer has a thorough understanding of the entire divorce process, including all the forms required, thus can easily work through the paperwork. By hiring a divorce lawyer, you can benefit from his expertise and advice regarding issues related to the divorce itself and life after divorce.
If you turn up to court without meeting the relevant requirements, you will not be able to complete the process and you will have to return some other time. This can drag the case for long. An experienced lawyer will help you meet all the requirements in good time as he knows the ins and outs of divorce cases. This will help you get through the entire process with ease and within a short time.
Without the guidance of a divorce attorney, you may not know that you have certain rights. For instance: you have a right to claim a share of your spouse’s pension. If you are not aware of this at the time you are filing for divorce, you may lose that right and might not be able to claim your share in future. A lawyer will advice you accordingly and will ensure that you will know all your rights during the divorce process.
Requirements for Filing Uncontested Divorce
There are certain requirements that you must fulfill in order for you to successfully file for an uncontested divorce in San Diego. They include:
You and your spouse must have resided in the state of California for at least 6 months and at least 3 months in San Diego. If you do not meet the residency requirement, you still have the option to file for legal separation, and then file an amended petition for uncontested divorce in San Diego once you meet the requirement.
As for those who wish to annul a sex marriage, there is an exception to the residency requirement. In case they got married in San Diego but now lives in another state that doesn’t dissolve same-sex marriages, they can file to end their marriage in California. This is regardless of the residency requirements.
Grounds for divorce
California is a “no fault” divorce state, which means that one doesn’t necessarily have to prove that his or her spouse did wrong to get a divorce in San Diego. The county recognizes 2 grounds for divorce - irreconcilable differences and incurable insanity. By Irreconcilable differences, it means that the divorcing couple has had marital differences that are beyond resolution, leading to a complete breakdown of the marriage. The irreconcilable differences may be trivial or of consequence.
Steps for Obtaining Uncontested Divorce in California
- Completing all the required forms
As the petitioner, you need to fill out the relevant court forms, which include:
- Form FL-100: This is the form where you will be required to provide some basic information about your marriage. It is also on this form where you will request the order that you wish the court to give.
- Form FL-110: This form contains crucial information in regard to the divorce process, most importantly restraining orders.
- Form FL-160: This is a property declaration form, where you can list all your properties and debts.
- Form FL-311: In case you have underage children, you’ll need to fill out this form if you want the court to make orders about custody and visitation.
After filing out the relevant forms, the next thing to do is to have them reviewed by a lawyer or a family law facilitator to ensure that you have filled them out properly. Once you are sure that the paperwork is done correctly, make at least two copies of each form. The original copy will be for the court, while the two copies will be one for you and the other for your spouse.
2. Filing relevant forms with the county clerk
You have to turn in the original forms and their copies to the county clerk. After scrutinizing the forms and having found no obvious errors, the clerk will keep the original copies and hand back the copies after stamping them “filed”. You will be required to pay a filing fee.
3. Serving the Court Forms
The law requires that you inform your spouse that you have started the divorce process. The legal way of doing so is serving your spouse with copies of all the court forms. Only after serving your spouse will the judge make orders and judgments in your divorce. Note that you aren’t obligated to serve the court papers in person. The law requires that you find someone who is above the age of 18, otherwise known as a “server”, to serve the forms to your spouse.
4. Filling out and serving the financial disclosure forms
California law requires that both spouses provide each other with written information regarding what they own, what they owe, and about their income and expenses. There are forms (known as financial disclosures) that both spouses should fill out and exchange. The financial disclosures can be filed together with the petition or no later than sixty days after filing the petition.
The next step to take is dependent on how your spouse will respond to your petition. There are four possible scenarios:
- Your spouse may not file a response with both of you not having an agreement.
- Your spouse may not file a response with both of you having an agreement.
- Your spouse may file a response with both of you having an agreement.
- He/she may file a response with both of you not having an agreement.
Hiring the Right San Diego Divorce Attorney
Filing for divorce, whether contested or uncontested, can be an intricate task. There are many decisions to make, many things to consider, and a lot of paperwork to complete. Hiring a divorce lawyer is a smart move if you want the divorce process to complete successfully and as soon as possible. If you need any information regarding uncontested divorce, or need help filling for divorce, contact San Diego Divorce Attorney at 858-529-5150.