Divorce By Consent Versus By Default

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Divorce By Consent Versus By Default

The document that says “you are now divorced” is called a Decree of Dissolution.  The decree is a court order (signed by a judge) that not only says you are now divorced, but contains all of the terms. ie: who gets what, what everyone is supposed to do, etc. But there are two types of decrees.

The first is a “Default Decree”. This is where the papers were given (“served”) on the spouse and the spouse did not file an objection (either because they agreed to everything so there’s nothing to fight or they just didn’t care to fight it, it wasn’t worth it to fight it and/or they were just too lazy to fight it). A Default Decree is signed only by the person who filed for the divorce. And then he or she takes the papers to the court to have the judge sign. It’s just a formality at that point, simply presenting the papers for signature. So it’s not like a court hearing on tv or the movies, as the judge is usually just checking that all procedures were followed, ie: not making any decisions like who gets what. They’re just signing the papers presented to them. So a default hearing takes all of 2-3 minutes. (Although the checking in and waiting your turn takes a few hours.) But the judge signs that day and that day you are divorced.

The second type of decree is a “Consent Decree”. This is also a court order and even contains the exact terms as the Default Decree. The difference is instead of just the one person signing, both people sign. (Hence the name “consent”.)  Again, consent by the other person is not required and often cannot be had. And that’s when you’d use a Default Decree, ie: they didn’t agree, but nor did they fight it. But you would think that if the other person IS willing to sign, you may as well use a Consent Decree. Well, not necessarily. As a Consent Decree may cost more, make the divorce take longer, and may complicate things.

First, the court is going to require a fee to accompany the Consent Decree, said presently $194. This is an appearance fee and even though no one is physically appearing in court, the non-filing person is now affirming something, ie: saying they agree, and this affirmation is considered an appearance.

Second, if you have a Default Decree, the person who filed for the divorce appears in court to finalize the divorce. In Pima County, this is done by calling the court and asking to appear on the day of your choosing, as long as the 60 days are up (60 days from the time the non-filing person was served). So most people choose the 61st day. (And again, only the filing person goes.) And you are divorced on the very day you go. Whereas if you have a Consent Decree, the papers may be submitted to the judge on the 61st day. But they can sit for a few days to even a few weeks. So your divorce takes longer.

Also, if you have children and you use a Consent Decree, your spouse MUST complete the parent education course for the divorce to go through. Granted, the law says both parents are supposed to go to the parent education course. But the truth is, the court only enforces said attendance on the person filing. So if you have a Default Decree and the non-filing person doesn’t do the class, your divorce can still go through. But that’s not the case with a Consent Decree.

That’s not to say a Consent Decree isn’t worth it. Or isn’t the best choice. As it may be. For some people, it’s worth the $194 to not have to appear in court. As even though it only takes one morning and it’s on the day of your choosing, for some a morning off work or finding childcare is a big deal and worth paying $194 to get out of. Or they just hate going downtown. (Although Tucson’s downtown is awesome now – if you haven’t been lately, check it out!) Or they don’t want to deal with parking and/or going out in the heat. So they happily pay the $194.

Also, for some people getting the other person’s signature on the papers gives them peace of mind during the divorce. As then we’re generally not waiting to see if they’re going to fight it or not. As once signed, we’re just waiting out the rest of the 60 days. Also, it may give peace of mind and perhaps even protection that the other person is not going to try to challenge the terms of the divorce after it’s final. As a non-attorney I cannot address how easy and/or even if a defaulted party may after the divorce goes through challenge the matter. But there are once in awhile cases where the non-filing person tries to have the matter set aside. And/or challenges the terms. This is unusual, but it does happen. So does having the non-filing person sign a consent decree protect you better from them coming back later wanting to challenge something? I can’t say. As nothing is 100% guaranteed. People try to break contracts all the time. But common sense would tell you if the person signed, it’s probably going to make it harder for them to claim they didn’t know what was going on.

Also, a Consent Decree may make sense in cases with Joint Legal Decision Making of the children. As the law says for a divorce to go through with joint legal decision making, both people have to complete the class first and the $194 is supposed to be paid. Granted, in Pima County the court often will allow a Default Decree to be entered without the non-filing person completing the class or the $194 paid. And then an order is issued that they need to do the class and pay the fee or risk losing legal decision making. (Although many people just ignore that order.) But in cases where both people have gladly done the class and either the filing person has agreed to pay the $194 and/or the parties are splitting all costs including the $194, they may as well use a Consent Decree.  Unless they’re in a big hurry and can’t wait the little bit of extra time it may take the judge to sign the papers.

As a non-attorney, I can’t advise what decree to use. Rather, I can simply point out some of the pro’s and con’s. And certainly an attorney could point out more. And even address if and/or how a consent decree better protects. Or doesn’t. But for a lot of people, the bottom line is cost. So even though most attorneys will advise to use a Consent Decree, they don’t get that $194 is a lot of money to many people. And not worth paying, particularly if a simple divorce with little or no assets.