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Definition of an Uncontested Divorce

by Chuck Ayers

Divorce is one of the most painful experiences in life. It can be handled in one of two ways: contested and uncontested. An uncontested divorce requires the agreement of both spouses and may be one of the few things they agree on or one of the many things in which they do not. Technically, a divorce is automatically granted by a court when the spouse who is served with the legal papers of divorce fails to file a formal response. There are no issues for the court to rule upon and the divorce is granted.

Amenable Uncontested Divorces

If there isn't a lot of anger and frustration between you and your spouse and you are both reconciled to the divorce, you can likely sit down and calmly discuss the division of assets, including property, jointly held bank accounts, money market funds, the house (if you own one) and other mutually held property. If children are involved, its always best if parents can resolve custody without involving the courts. This is where an uncontested divorce works best, particularly if both parties agree to place the interests of the children before their own.

Unfavorable Uncontested Divorce Situations

If there is physical violence in the relationship, divorce proceedings will more than likely require professional mediation. Mediation might also be a good idea if no agreement can be reached on divorce specifics (separation of assets, custody, etc.). If both or even one party is ignorant of the law and greedy, an uncontested divorce may not be the best situation, either. Keep in mind, where there is rancor, there is little hope of reasonable discourse.

Seek Separate Legal Counsel

Each party must retain their own legal counsel, even in an uncontested divorce. A single attorney can handle the case, but can only represent the interests of one or the other of you. The party not represented by an attorney, at minimum, should have a "coach" to look out for the details that may be missed in the final document. Conversely, the spouse who is unrepresented may want another attorney to look over the paperwork. While a single attorney can draw up papers, file them with the court and take care of the technical aspects, it is considered unethical for an attorney to represent the interests of both parties. The costs will be slightly higher if a second attorney "reviews" the documents, but couples should be wary of attorneys willing to represent the interests of both parties in what is legally considered an adversarial proceeding. In some states, it not legally permitted and others permit it, but the practice is frowned upon.

Cost

One thing is unequivocally certain, the cost of an uncontested divorce is far less than one that is contested. The hours of negotiation that must occur between attorneys adds up quickly if the spouses are unable to come to terms. In an uncontested divorce, much of the process becomes little more than a formality, thus taking much less time and therefore much less money. The fees charged by attorneys in uncontested divorce cases vary widely. Look in the classified section of most any newspaper or even on-line and you can find rates as low as $100 (plus court and filing fees). Some attorneys charge much more, ranging into the thousands. Because the technical skill, panache and other intangibles in court proceedings aren't significant, the matter becomes one of technicality in the eyes of the court. Therefore, probably the most important quality you need in an attorney is competence. There are numerous resources to find this out. Ask friends who may have attorney friends or who themselves may be divorced or check with your state's bar association.

Mistakes

According to attorney Lee Borden, there are several major pratfalls that a divorcing couple may overlook. First, keep in mind that you have control over your divorce, not anyone else, including and particularly friend and family. Consider tax consequences when getting divorced, For example, if stocks are involved in the division of property, remember that income derived from them is taxed at a lower rate than that of money (income) from a bank account. Oftentimes information can be shared between the divorcing couple rather than spend money on attorneys going through the process of discovery. Lastly, make sure you have a clear inventory of what you own versus what you owe.

About the Author

Chuck Ayers began writing professionally in 1982, breathing life into obituaries, becoming a political and investigative reporter at a major East Coast metropolitan newspaper. He now freelances and is a California communications and political consultant. He graduated from American University, Washington, D.C., with degrees in political science and economics.