What is an Uncontested Divorce?

I get a number of questions about uncontested divorces in my family law practice in North Carolina. I find that many times, people have an incorrect or incomplete understanding of what uncontested divorce means and how it is accomplished. 

In North Carolina, when the law addresses “divorce,” it typically refers to an absolute divorce. An absolute divorce is the legal termination of a marriage, making two people who were married unmarried.  An absolute divorce does not require that one spouse or the other prove fault or marital misconduct. The only facts that need to be shown to the court in order to be granted an absolute divorce (in addition to facts that support that North Carolina is the appropriate jurisdiction to enter a judgment of absolute divorce and that both parties are legally competent) are (1) that the spouses have been separated from each other for at least one year; (2) that at the time of their separation at least one spouse intended the separation to be permanent; and (3) the separation has remained permanent and the spouses have not reconciled. Most of the time, these basic facts are not disputed by the parties, and the judgment of absolute divorce is entered by the court without contest. Typically, this does not require a trial, and if it does, it is a brief trial in which one or both parties simply recite the facts to the court, and the judgment of absolute divorce is granted. This is the process I would refer to as an “uncontested divorce.”

Sometimes, spouses disagree on the date of their separation or whether they reconciled during the period of separation, and these kinds of absolute divorces are contested. In these events, there will be a trial, and a judge will hear evidence regarding the issues about which the spouses disagree and will make a final determination of the facts, granting the absolute divorce if the facts support that ruling or denying the absolute divorce if they do not. This is the process I would refer to as a “contested divorce.” 

Do I Need a Lawyer for an Uncontested Absolute Divorce?

While North Carolina law permits individuals to pursue absolute divorce without legal representation, consulting with an experienced family law attorney is highly recommended. A lawyer can ensure that all legal requirements are met, including proper service of the lawsuit for absolute divorce on the opposing party, and can guide you through the process. In addition, a family law attorney can assess whether there are other issues that should be addressed before proceeding with an absolute divorce (like spousal support and equitable distribution). In North Carolina, a spouse’s rights to pursue spousal support and equitable distribution are tied to the timing of the entry of a judgment of absolute divorce, so it is important to seek legal advice about those issues before proceeding with an absolute divorce.

All that said, after a person consults with a lawyer to make sure that their rights for spousal support and equitable distribution are secure, that person may desire to pursue the lawsuit for absolute divorce without the assistance of an attorney. In North Carolina, the Administrative Office of the Courts (www.nccourts.org) has instructions regarding how to move forward with an absolute divorce if you wish to represent yourself. It is easier to manage an uncontested absolute divorce without legal counsel than it is to manage a contested divorce without legal counsel.

How Much Does an Uncontested Absolute Divorce Cost?

Cost considerations for an absolute divorce in North Carolina typically include attorney’s fees (if you retain an attorney), filing fees payable to the Clerk of Court, and the cost to serve the lawsuit. An uncontested absolute divorce is generally less expensive as it will not necessarily require a trial. Most absolute divorces are billed at an attorney’s or her paralegal’s hourly rate, but the number of hours required to complete an uncontested absolute divorce is minimal. Filing fees to the Clerk of Court in North Carolina as of the date of the publication of this article are $225. The cost to serve the lawsuit depends on the method of service: generally, service by a Sheriff is approximately $30, and the cost of service by certified mail or designated delivery service is dictated by either the postal service or the designated delivery service used but can start around $8 and increase from there, depending on the carrier and whether delivery is express or regular.

An Important Note.

At the outset of this article, I indicated that many times when clients or potential clients contact me to ask about an uncontested divorce, they have a very different understanding of what that is. I find when people reach out to me to ask about “uncontested divorce,” they are not talking about absolute divorce but the settlement of the other issues that spouses need to address upon separation, which may include child custody, child support, spousal support, and equitable distribution. It is a rare occasion when one or more of these issues are not contested; however, qualified family lawyers can facilitate the negotiation of any matters that the spouses have not agreed upon and can advise their clients regarding options to achieve resolution if an agreed-upon settlement is not possible. It is incredibly important to consult an attorney to make sure you understand your rights and obligations and can make a meaningful, informed decision regarding how to proceed.