What is an Uncontested Divorce?
When someone makes the difficult decision to file for divorce with their divorce attorney, there is pain enough without having to air personal conflicts, money issues, child issues, and more in front of strangers. That was the only standard for a divorce attorney and their clients for many years, but today, it is more common to file for no-fault divorce or an uncontested divorce. There are many reasons for doing so. Uncontested divorce, or no-fault divorce, is faster, less expensive, less painful, and less damaging to children. Nothing can completely remove those problems, but if you and your divorce attorney believe you can ease them, an uncontested divorce, or no-fault divorce, can be the best option.
An uncontested divorce, or no-fault divorce, takes place when both parties agree on the terms of the divorce and settlement without the need for a court hearing or judge’s intervention. An uncontested divorce can even take place without the use of a divorce attorney, but if you have any questions or complications, at least one divorce attorney for one of the spouses can be a tremendous help during a no-fault divorce, or uncontested divorce.
A contested divorce can still be a no-fault divorce. Even though elements of the settlement may have to be decided by a judge, the blame for the conflict in and eventual dissolution of the marriage is not under consideration as it is in a fault-based divorce.
Uncontested Divorce and No-Fault Divorce Process
In most cases, the partners discuss their options and agree to general terms before the divorce process even begins. Once those terms are generally decided upon, at least one of the partners contacts a divorce attorney. It’s important to realize that a divorce attorney cannot represent both parties in this type of proceeding. The divorce attorney must look out of the interests of their client, and in a divorce, even when it is uncontested, those interests are not the same or equal for both parties. As a result, both parties may want to employ a divorce attorney, although it is not required.
The primary issues that must be resolved with the help of a divorce attorney before a divorce can be granted usually fall into four categories:
- Property division (including savings and pensions)
- Debt allocation
- Child custody and visitation
- Alimony and child support
If either spouse is dissatisfied with the agreement as settled upon, it is no longer an uncontested divorce, or no-fault divorce. At that point, the couple must seek a mediator, separate divorce attorneys, or plan to go to court. It may remain a no-fault divorce, as long as nether party wants to make the other take the blame for the breakup of the marriage. However, when settlement issues are being contested, it takes the proceedings to a more formal, more time-consuming, and more expensive level.
Advantages and Disadvantages
There are many advantages to having an uncontested divorce. As mentioned above, time and money are the most obvious advantages. However, privacy is another important reason. While the details of your settlement are a matter of court and public record, few people will access those records. In addition, the negotiations that go into those decisions are private. Nor do you have to display your emotions in front of others.
However, an uncontested divorce will not work in some situations. Obviously, if one or both partners are being verbally or physically abused, a no-fault divorce will rarely work. Even if the parties can get past their hurts and accusations at the beginning, the reasons for the abuse generally reappear and the negotiations disintegrate. In addition, if either partner is too greedy for gain or to “come out ahead” of the other, an uncontested divorce will rarely succeed. The other partner will “contest” the terms before long. Finally, if the partners do not have the ability to conduct amicable discussions or negotiations, it does not make sense to pursue an uncontested divorce. If negotiations break down, the effort for an uncontested divorce will be wasted. For all of those reasons, it is important for both parties to consider carefully before they begin this process. It is not for everyone, and those who seek to save time will defeat that purpose by having to change directions in the middle of the proceedings.
No matter how amicable a divorcing couple’s negotiations are, there are legal requirements that must be fulfilled. Every state has different requirements for residency, separation periods, child custody, divorce settlements, alimony, and child support. Rarely do lay people understand those implications completely without the advice of a divorce attorney. Even if an uncontested divorce can be concluded without a lawyer, difficulties the parties may not have been aware of may come up in the future. At that time, it may cause more rancor and produce more legal and financial problems than if they were correctly addressed in the beginning.
Since most uncontested divorces use only one lawyer, the party without legal representation may end up being taken advantage of. For that reason, even an unrepresented party may want to meet with a divorce lawyer or a legal coach at least once to review the final divorce papers before they are signed. Until the papers are signed, you can continue to negotiate terms and make changes. If the discussion becomes too contentious at that point, you may need to retain your own lawyer and take your case to an arbiter or a judge. However, if the adjustments are minor and agreeable to both parties, the papers can be signed, the divorce lawyer handling the case can submit them to a divorce judge, and in many cases, the no-fault divorce or uncontested divorce will be granted.
Once the divorce degree is finalized, both parties must comply with the terms of the agreement or face other penalties, such as contempt of court and more. That is why in an uncontested divorce, it is important to make sure the settlement is appropriate and fair to all concerned before the papers are submitted and the divorce is granted.