Uncontested Divorce v Default Divorce

Uncontested Divorce v Default Divorce

An uncontested divorce is not the same as a default divorce.

Quite simply:  Default means only one person has appeared.  Uncontested means both have appeared in case.

Whether it’s Default or Uncontested, You Can Still Settle, but only Uncontested has option of Contesting

You can still reach a settlement whether it is a default or uncontested.  However, in a true default case, the Respondent cannot contest the case.  Respondent can still contest a case that starts off uncontested, if he files a Response and pays the filing fee.

Default Divorce

In a true default divorce, here is what happens:

1. Petitioner files a Petition (FL-100) and pays filing fee and properly serves the Respondent.
2. Respondent does not file a Response (FL-120) or pay the filing fee.
3. After 30 days, Petitioner files a Request to Enter Default (FL-165), and thereafter submits Default Judgment.

In a Default, Respondent Fails to Respond, and Thus by Default Gives up his/her rights to Contest

In a default, Respondent fails to respond, and by default, he/she gives up her rights to respond or contest the divorce action.

Uncontested Divorce

In an uncontested divorce, here is what happens:

1. Petitioner files a Petition (FL-100) and pays filing fee and properly serves the Respondent.
2. Respondent files a Response (FL-120) and pays the filing fee.
3. After Response is on file, parties can negotiate a settlement…or take it to trial if they don’t agree. (In which case it is no longer “uncontested”)

What Are the Pros of Default Divorce?

The only pro I can think of is it saves you the $450 filing fee.

The other pro I can think of is this: If it’s a short marriage, no kids, no assets, no debts, no issues…it MAY be better for some types to be able to just ignore it, because ignorance is bliss.

What are the Cons of Default Divorce?

1.  The biggest con is that the defaulted party (Respondent who fails to file Response) does not get a say in the divorce.  The divorce is proceeding without any input.

Ok, But How Does That Affect the Petitioner?

As the Petitioner, you may not care, because you did your duty.  However, it is noted, default divorces are more easily set aside than Uncontested.  This means, even though you think your divorce is over, there is a possiblity Respondent can hire an attorney and file a Motion to Set Aside.

A quick Google search produces a website that teaches you how to do this!  How to set aside default divorce.

In General, Uncontested Divorces are Preferred

Whenever I mediate a case and file the paperwork for my clients, I will proceed with an uncontested divorce.