A divorce doesn't start out as uncontested – it ends that way. In most states, uncontested simply means that spouses have reached an agreement on all issues so they can divorce without a trial. In some states, however, it can also mean that the defending spouse has done nothing toward taking an active part in the proceedings. If this happens to you because you're unaware that your spouse has filed for divorce, you often have recourse.
Uncontested Divorce by Agreement
In some states, it's possible to file for an uncontested divorce to begin the proceedings, but your spouse can't do it alone without your knowledge. For example, in Ohio, you and your spouse can file a joint petition to dissolve your marriage and attach a copy of your settlement agreement, showing the court that you've resolved terms for child support, custody, visitation, property division and payment of marital debts. Otherwise, divorces begin as contested matters, without an agreement, then become uncontested when spouses resolve their own issues before trial. In either case, the divorce can't occur without your knowledge because your signature is required on the settlement agreement.
Uncontested Divorce by Default
If you don't file an answer to your spouse's petition or complaint for divorce, he can get a divorce by default. After a statutory period of time that varies by state, your spouse can ask the court to grant him a divorce regardless of your lack of participation. The judge will generally award him all the things he asked for in his complaint. He can't do this unless he can prove that you received a copy of the divorce paperwork, however. He must show that you knew he filed and that not getting involved was your choice.
Service by Publication
After your spouse has filed for divorce and served you with a copy of the paperwork, he must submit a document to the court showing how this was accomplished. Most states require that he have the county sheriff hand deliver the paperwork to you, or use a private process server. Some states allow service by certified mail, or he can give you the papers personally if you sign an acknowledgement that you received them. In any case, he must provide the court with a copy of your signed acknowledgment, the certified mail receipt, or a sworn statement from the person who gave you the documents. If he doesn't do this, the divorce can't proceed unless he asks the court for special permission to serve you by publication. He must prove to the court's satisfaction that he tried everything possible to locate you and that he failed. If you left the area and have no friends or relatives remaining there, and he receives permission to post notice of the divorce in the local newspaper, it's possible you might never know about the notice. He would then be granted an uncontested divorce by default.
Vacating the Judgment
If the divorce goes through and you find out about it later, you usually have a period of time within which to ask the court to set aside or vacate the default judgment. This involves filing a motion to let the court know what's happened. You'll need a good reason for not responding to his divorce papers, such as you moved and were unaware of the published notice. The court will reopen your case and try the issues rather than just award your spouse whatever he asked for in his complaint. However, it's possible that you might not lose much if a default divorce is granted. Some state courts, such as those in Florida, will not rule on things like support, custody or property division unless you're personally served with the divorce documents. It's possible that all the court will award your spouse is a divorce, ending the marriage without resolving any major issues.
- Dishon & Block: California Uncontested Divorce
- William L. Pfeifer: Alabama Default Judgments – How to Set Aside a Default Judgment in Alabama
- Utah State Courts: Default Judgments
- Dishon & Block: Can a Judgment Be Set Aside?
- Sixth Judicial Circuit of Florida: Pointers for Service by Publication or Posting in Divorce Actions (PDF)
- Ohio Legal Services: Family Law – Legal Separation, Divorce and Dissolution
- Michigan Legal Help: How to Serve Divorce Papers
- David De Lossy/Valueline/Getty Images