Making the decision to begin the process of divorce can be difficult is often a highly emotional legal journey. That said, the process doesn’t always have to be complicated. There are two types of divorce, contested and uncontested. This article will help you understand some of the basic aspects involved in each type divorce and decide which avenue works best for you.
Uncontested Divorce
When you hear the term “uncontested divorce,” this is another way of saying the divorce is agreed. In other words, both parties understand that the marriage needs to be dissolved and have come to an agreement about all issues that must be addressed before the judge signs a final Decree of Dissolution. These issues may include, but are not limited to, matters involving child custody, child support, visitation, alimony and division of assets.
In an uncontested divorce it is often the case that only one party will retain an attorney. This party will be known as the Petitioner. The attorney will draft the necessary documents according to the agreement that was provided and file a Petition of Divorce that has been reviewed and approved by the client. If the other party (Respondent) still agrees to the Petition, that party will sign a Waiver of Service which enters his or her appearance into the case. This also waives the service of notice required by Oklahoma statue.
After a Waiver of Service is signed and returned by the Respondent, a Final Decree is drafted. The parties will be provided a copy of the decree for review. Once the decree has been signed by both the Petitioner and Respondent to evidence their agreement, a court date will be set. One or both parties may be present at the hearing. Following a short hearing, the Judge signs the agreement and it is filed with the court clerk.
Uncontested divorce is generally the most cost effective option as it eliminates the amount of time that must be spent settling the case or worse, taking it to trial. It’s important to understand that the more you and/or your spouse disagree about various issues, the more costly your divorce becomes. Parties who are able to work together will benefit immensely both economically and emotionally.
Contested Divorce
A contested divorce is a divorce in which the parties disagree on one or more issues. This makes the process more detailed and lengthy. After meeting with an attorney, a Petition and an Application for Temporary Order is filed with the court. In compliance with Oklahoma statute, the opposing spouse will be served with notice of these documents and proof of service will be filed with the court. Your spouse will then have 20 days from the date of service to provide a response to the court in regards to the Petition and Application for Temporary Order. If there is no response, a Motion for Default may be filed.
Once a response is filed, your attorney will begin drafting Interrogatories. This is often more simply referred to as Discovery. Discovery is the process of gathering information that will be used to reach a settlement or, if no settlement can be reached, in trial. During this period, your attorney will also receive Discovery requests from opposing counsel. You and your attorney will review the requests together and respond to them accordingly. Typically, each party has 30 days to respond to a Discovery Request.
A hearing will be set to establish Temporary Orders. Temporary Orders are a way to provide structure and stability throughout your divorce proceedings. Issues that are often addressed in Temporary Orders are custody/child support, who will remain in the marital home and who is financially responsible for what until a final decree is entered. In some cases, alimony and attorney fees may be addressed in the Temporary Order as well. During this hearing, we normally will schedule the final hearing date.
Another important step your attorney will assist you with is mediation. Mediation is often required by the court in order to help facilitate an agreement between the parties and can often be obtained for no cost. This valuable resource can often save the client significant time and money. Mediators are skilled at helping people find solutions to their disagreements which, in turn, helps avoid the stress and cost of a trial. Your attorney will apply for no-cost mediation and work with opposing counsel to schedule a date that works best for all parties.
If a settlement cannot be reached, the parties will go to trial. While it is both important and beneficial to work toward a settlement, your attorney will prepare your case for trial beginning on day one. For this reason, it is important to be transparent about any issues and to work with your attorney to provide any information that is requested.
It is important to understand that a contested divorce can be both draining and costly. While divorce is seldom easy, having the right attorney helps make the process less difficult. Choosing a knowledgeable attorney who provides quality service and works toward the best outcome for your unique situation is crucial to finding comfort and peace of mind.
COMMON DIVORCE FAQ
What happens when my spouse doesn’t respond to the petition?
Your spouse has 20 days from the date of service to file a response with the court either pro se or through hired counsel. If after 20 days a response has not been received, you have the option to file a Motion for Default. A Motion for Default is a formal request for the court to grant a a default judgement. This is the next step in finalizing the divorce. Further requirements such as additional attempts to notify your spouse as well as providing documents proving income, assets, etc. may be necessary before the Judge signs an Order.
How long does it take to get divorced?
The time it takes to get divorced in Oklahoma depends on a variety or circumstances. In the state of Oklahoma, a divorce can be completed no less than 10 days after filing your Petition if no minor children are involved. If you do share minor children, the State requires a minimum waiting period of 90 days post filing. These time limits are statutory in Oklahoma but it is possible to have them waived if there is a compelling reason. Uncontested divorces are typically completed within this time frame. However, uncontested divorce usually take longer since there are disagreements that must be negotiated and/or heard by the court.
What is Service of Notice?
Service of notice in a divorce proceeding is the act of notifying the other party that a petition has been filed so that the other party has the opportunity to respond in an allotted amount of time should he or she disagree with the terms. This is typically done through certified mail or, in some cases, through a process server. Occasionally, there are instances in which the other party has changed their mind about something listed in the petition. If this happens, the case becomes contested and the respondent party must be formally served with the petition by certified mail or by a process server.
What happens when my spouse cannot be located or served?
Occasionally, an attorney is unable to locate an opposing spouse. If your spouse cannot be located and served by certified mail or a process server, your attorney will file an Affidavit of Diligent Search and request permission from the court to serve by publication. Once the court grants your request for Service by Publication, a Summons must be published in a local newspaper for three consecutive weeks.