What is the Difference Between an Uncontested Divorce and Default Divorce
There are three types of divorces you can file; contested, uncontested and default. All three result in a dissolution of the marriage, but each are different and are used in different situations. A contested divorce is used when your spouse are not in agreement. An uncontested divorce is when you and your spouse agree to the divorce. A default divorce is used when your spouse will not respond to your request for a divorce or you no longer know where they are.
For this article, we will discuss two of the three types of divorce; uncontested and default. We are focusing on these two because they are often confused with each other. Client think an uncontested divorce and default divorce are similar but they are quite different.
What if you want a divorce but you haven’t seen your spouse in over a year? Which type of divorce do you get? Probably a default divorce. What if you and your spouse agree on the terms of the divorce? In that case you can probably use an uncontested divorce.
This article will explain the difference between an uncontested divorce and a default divorce so that you know what type to use in your situation.
What is an Uncontested Divorce?
An uncontested divorce is when both parties agree on the five main areas of dispute: child custody, child support, division of assets, division of debts and alimony. Custody and child support are only needed if you have children. Because there is nothing contested there is no need to go before a judge.
In Nevada, you will file a Joint Petition for for an uncontested divorce. That is the name of the documents. You and spouse write out the terms you agree to and file the Joint Petition document with the court. The judge reviews the terms and signs your Decree of Divorce, usually without a hearing. The whole process takes about three weeks.
This is not a Default Divorce where one of the parties fails to respond. This is a true uncontested joint petition, where every term of the Decree is agreed to by both spouses. The spouses have agreed to everything from division of assets and debts, alimony, and if there are children, child custody and child support. If everything is not agreed to, you cannot use Joint Petition.
The typical scenario goes like this: Husband and Wife both want a divorce. They don’t want a long, drag out fight and want to resolve their issues amicably. They sit down together and discuss things like how to divide their assets, usually who gets the house, how to divide any retirement plans, and discuss how to divide their debts. If there are children, they discuss a timeshare schedule both can agree upon that is in the best interest of their children, and they discuss child support. They also address alimony, and if one party makes less money than the other, they agree on how much alimony should be paid and for how long. Because they have agreed to everything they can file an uncontested divorce using a Joint Petition. If there is a dispute to any of this issuse the Husband and Wife cannot get an uncontested divorce.
Do you think your spouse would agree to the divorce, but you don’t know where she is? Or she says, “Yes I want a divorce but I’m not signing thing”. This is when a default divorce is used
What is a Default Divorce?
A default divorce is when one of the spouses will likely not to respond to the Complaint for Divorce. A Complaint for Divorce is the document used to open a divorce lawsuit. You list your claims such as the assets you want, debts you want, custody schedule you want, etc. Basically, you list your wishes. After filing the Complaint you serve your spouse and they have 21 days to respond.
There are two typical scenarios in which a default divorce can happen. One scenario is where Husband and Wife have been separated for months, or even years, and one of the parties cannot be found. In that scenario, if they cannot be found, they cannot sign an uncontested divorce. With an uncontested divorce, both parties must agree on all five areas of the divorce. If one of the spouses is not available for a discussion or agreement, then a Complaint for Divorce must be used.
Often times a party will call our office looking for an uncontested divorce but have not had contact with the other spouse for a length of time. This is where we use a default divorce. A default divorce is where we file a Complaint for Divorce (like in a contested divorce) and we personally serve the other person with the documents. After being served they only have 21 days to respond to the divorce. They must respond with a document stating what they agree with and what they disagree with. If they don’t respond, then a judge can give you everything you asked for in your document. We call this a default because you received your wishes by default.
What if you don’t know where they live. You need to know where they lived or there last known address to personally serve them the Complaint. And you must personally serve them for the 21-day clock to start ticking. Sometimes after you have attempted personal service you can ask the court to serve him by publishing in the paper or emailing him. This can only come after you attempt to personally serve him.
Another use for a default divorce is the scenario where a spouse’s location is known but she will not respond to the Complaint for Divorce. Some spouses refuse to accept that a divorce is happening. They will not sign documents. You do not need them to sign. A judge can give you a divorce without your spouse’s agreement or signature.
A typical example we see is where one spouse does not want to get divorced, and they think by not answering the Complaint for Divorce then they will stay married. If the Complaint for Divorce is ignored by your spouse, a judge will give you a default divorce after the time limits for responding have expired.
One issue in obtaining a default divorce is that if the defaulted spouse shows up within a certain period of time, she can ask the court to set aside the default and allow her to make her wishes known to the court. The time limit is typically six months for a spouse to ask the court to set aside the divorce.
In summary, an uncontested divorce is used when both spouses agree to the terms of the divorce and will sign the documents. A default divorce is used when the other spouse will not sign, or will likely not be found.
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