The divorce is happening, but the fighting is over and the need for a divorce now clear. Yes, there may still be anger, resentment, and internal shouting, but neither of you disputes that divorce (an end to the marriage) is necessary and needed. You are willing to do whatever it takes to end this marriage as quickly as possible.
What Is An Uncontested Divorce?
In the simplest terms, an uncontested divorce is one where you and your almost former spouse are agreeing to and cooperating with the entry of a divorce judgment terminating the matrimonial bonds. Uncontested divorces can be completely amicable and end on friendly terms, or they can involve a little more hatred and resentment but still, there is agreement on certain aspects (like – we need this to end!).
Louisiana Civil Code 103 prescribes that when parties have lived separate and apart for the appropriate amount of time, a divorce can be rendered.
It means your spouse is in agreement and will agree to accept service of a divorce petition.
In a truly uncontested divorce, all the issues (like child custody/support, spousal support, and property separation) are agreed upon by the parties without much legal work needed.
What is the Difference Between Contested and Uncontested Divorces in Louisiana?
Unlike an uncontested divorce, where all issues are agreed upon by both sides, a contested divorce is where the parties do not agree on some or all aspects of the divorce. The case will go to a judge who will have to decide issues such as child custody, spousal support, and property/debt division.
More likely, certain aspects of a divorce are uncontested – like the need to end the marriage while other aspects, such as child support, child custody and visitation, property separation, etc. remain disputed or at least not yet agreed upon.
You can agree to the divorce and still fight about the other issues.
What Happens When a Divorce is Uncontested?
In a typical uncontested divorce situation, one party will file the petition and request a waiver of service from the other party. This waiver of service starts the clock running for when the judgment of divorce can be granted.
When Is An Uncontested Divorce Granted in Louisiana?
In Louisiana, most divorces are not fault-based and an uncontested divorce is granted simply by living separate and apart for the required time.
With minor children – parties must be separate and apart for 365 days.
Without minor children – the separation period is only 180 days.
Just because a divorce is uncontested does not mean these periods will be shorter.
Parties must stay separate and apart for the entire time – meaning not living under the same roof AND not having any reconciliation during this time (that is – no “sleep” overs or “late-night visits”).
There are a number of benefits to an uncontested divorce, and these include the potential for:
● Reducing the cost of divorce, and
● Ending your marriage amicably.
Fault versus No-Fault Divorce
A “fault” based divorce is one granted due to a specific legal reason including but not limited to adultery, domestic violence/abuse in the marriage, felony conviction, or having a protective order issued.
If a fault-based cause exists, the time periods mentioned do not apply.
Just because a fault-based cause exists does not mean the divorce will be contested.
The divorce case may still be uncontested – although it may require more to obtain than just the consent of the other party.
Special Post-Separation/Pre-Divorce Property Concerns
If you are separated or are considering separating from your partner but have not yet officially filed for divorce, there are a number of things you should consider trying to find agreement on if possible:
If you and your partner have been living separately, debt (credit cards, new cars, new homes, furniture, etc.) may have been incurred during this time. Louisiana is a community property state - this means that both parties will be equally liable for the debt, up until the point at which the Petition for Divorce is officially filed or a Judgment of Separation is entered. This can negatively impact any property settlement.
Any assets obtained by either spouse before the Petition of Divorce is filed will be considered by the courts to be community property, unless the parties agree otherwise. Both parties are required to reach an agreement about the best way to divide the assets – even including these newly acquired assets. If you wait until the required time period has elapsed before you file, you should be aware that all debts and assets that may be incurred while waiting will most likely be considered community property.
Tips Before Filing For Divorce – Uncontested or Not
Here are a few areas to see if you can reach an agreement with your soon-to-be former spouse if you want an uncontested divorce:
Child Custody/Support – if you have minor children, try to come up with an agreed custodial arrangement for normal days, weekends, holidays, etc. You should also see if you can agree on the child support amount using the Louisiana child support tables.
Property – this is usually a little more difficult, but even if you can agree on some things it can make your process easier. Agreeing on things like who gets what car or retirement account or gets to stay in the home can make the divorce more uncontested.
Spousal Support – again, this is usually difficult since no one really likes to pay money to a soon-to-be former spouse to maintain a standard of living, but if any agreement can be reached here, it helps.
Be Aware Before Signing Divorce Papers
One thing we do caution – just because you have an agreement does not mean it is fair or equitable, and we may advise you not to agree to it.
Over the years, we have seen on more occasions than we care to count, one party will manipulate the situation or convince the other to “agree” to a wholly one-sided deal and we as the divorce attorney have to play the bad guy and say – “This is absolutely not a good deal and we do not recommend it.”
Typically – we are going to be looking for fairness and an equitable split. If it’s one-sided – despite how the other party spins it – we have a duty to let you know our legal advice and recommend against signing it.
Do You Need More Advice?
Though uncontested divorces tend to be a little less complicated than other types of divorce, there is still confusion and complications on procedural rules and agreements when filing the Petition for Divorce, trying to confirm the default, and especially when trying to work out other issues.
If you are confused about the process or feel you have questions, get in touch today to schedule a family law strategy session with a Metairie divorce lawyer, and let our team help you analyze your situation, discuss the process with you, and allow you to resolve your issues as quickly and cost-effectively as possible.
You will feel the relief and see clearly your new path laid out in front of you!