When to Do a Pro Se Divorce

Filing pro se works when the action is uncontested, a proceeding in which there are no disputes. Uncontested means that:

  1. both the husband and wife agree to the divorce;
  2. both agree to the division of property and debts, and, if applicable,
  3. they agree on custody and related issues regarding the children.

An uncontested divorce does not mean that the parties do not fight and argue; it means they fight and argue outside of court and (eventually) work out their differences themselves rather than have a judge do it for them in an exhaustive court trial, or through negotiations by lawyers that leave them with hefty legal fees. A court trial is litigation, and good divorce lawyers avoid it if at all possible.

An uncontested divorce does not mean the parties are necessarily happy with the terms and conditions of the divorce; it means that they can live with them. (By comparison, one divorce judge said that a "fair" court-imposed settlement is one that makes both spouses unhappy.)

In a contested divorce, either spouse can slow down (or drag out, depending on point of view) the action, and for this reason, one spouse may contest a divorce. Some divorce lawyers build legal strategies around delays to enhance a bargaining position. In a pro se filing, there is no legal strategy, and neither spouse jockeys for an advantageous position through procedural manipulation.

In a contested divorce at least one issue has not been settled -- either getting divorced or the terms of the divorce, such as the division of assets, allocation of debts, alimony, child support, or the custody of children. In an uncontested divorce, the spouses agree on everything and do not need the court to divide assets or make determinations about spousal or child support or custody. In general, an uncontested divorce proceeds through the system more quickly, is much less complicated, and is less of a financial burden. In the hands of a pro se filer who understands the practice and procedures in his or her jurisdiction, a pro se divorce makes this even more simple because lawyers are eliminated, or at the least reduced to out-of-court advisors who review paperwork.

Often couples begin the process of a contested divorce and then, before the actual trial, reach agreement. This is called a settlement. One of the biggest advantages of a settlement is that neither spouse will appeal. Both agree to it and thus are presumably satisfied. Both parties can therefore be assured of finality and an end to litigation. Agreements must be memorialized in such a way that it makes the settlement legally binding and enforceable. Pro se filers have often reached a settlement before even filing.

In an uncontested divorce, the parties must take three steps:
  1. one spouse must file the initial paperwork to set the action in motion and have it served on the other spouse;
  2. the couple must negotiate a marital settlement agreement that defines and describes the terms and conditions of

    1. property distribution, and if applicable
    2. spousal and child support and
    3. custody and visitation; and

  3. they must complete and file the final papers, including the Marital Settlement Agreement, with the court.

The first and third steps are mechanical and formalistic. The second step can be very difficult, but if the couple can do it for themselves, they can save a great deal of money. Some couples can negotiate the second step before they go about the first one. It truly depends on the circumstances and situation.

Since the 1970s most states have permitted no-fault divorces, which may be either contested or uncontested. No-fault grounds -- either "irreconcilable differences," "irretrievable breakdown" or physical separation -- lend themselves to uncontested divorce. An uncontested divorce is the route two people can take when for reasons sufficient to themselves they do not wish to be married to each other any longer, when the marriage has, as is said, "broken down."

One of the advantages of an uncontested divorce is that the couple can handle most of the action pro se.

Uncontested divorces generally travel in one of five routes:
  1. a Summary Divorce, which allows judges to enter judgments without a trial, is generally used when questions of law, not fact, are at issue.

    For couples who have been married a short time and have few financial entanglements, a summary (simplified) procedure is the easiest route to an uncontested divorce. The summary procedure works particularly well for a childless marriage, where both parties agree to waive spousal support, and the couple own neither a marital home nor have significant assets or liabilities.

  2. a Mutual Divorce, which allows judges to enter judgments without a trial, is generally used when each spouse is in agreement and both sign a Marital Settlement Agreement which resolves all the issues of the divorce. The divorce is granted according to the terms of the Marital Settlement Agreement, which is often time the same or similar to a separation agreement that the parties signed at the time of a trial separation. It is often recommended go this route if both parties are in agreement and willing to participate.
  3. a Default Divorce, where one spouse never responds to the filing spouse’s complaint. In some states, spouses can end a marriage together by agreeing to a default divorce, which is possibly the easiest and least expensive way to divorce. No fault, no contest, no lawyers -- just filing a forms in the local court and making good-faith effort to notify the partner. Then the law takes its course. A default divorce is less complicated than applying for a passport. Default divorces sometimes happen when couples marry then physically separate. Sometimes couples marry on an impulse, and then go their separate ways. Courts do require that a person seeking a default divorce makes a diligent effort to locate the missing partner. A sincere effort means a complete effort at finding the person, including an Internet search.
  4. a Mediated Divorce, in which a couple uses a trained mediator to help them resolve disagreements about property division and distribution and child custody and visitation.
  5. a Collaborative Divorce, in which two spouse hire lawyers who act as negotiators, not adversaries, and the four people hammer out an agreement in face-to-face sessions.

In each of the above cases, in actual filing of the divorce papers can be handled by a lay person acting pro se. Mediated and collaborative divorces often involve larger marital estates, and the parties in these actions are more likely to enlist the services of a lawyer from start to finish, including the filing.



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