A common question potential clients often struggle with is whether or not an uncontested divorce is right for them. The question is really less about assets, then about your approach to the divorce process. In this blog I examine what are the real issues behind whether an uncontested divorce is right for clients.
1. I Don’t Want to Go to Court
An important element of whether an uncontested divorce is right for any party is whether they want to go to court to litigate the divorce. While certain issues, such as custody of children, division of retirements assets, and spousal/child support always have a fine line that one must be willing to go to court over, if your general approach is that you don’t want to end up in court, then an uncontested divorce maybe right for you. In an uncontested divorce, if the parties can resolve their issues with a property settlement agreement, then they will not end up in court. Most jurisdictions allow affidavits, a final decree, and other divorce related filings to to be entered without an appearance in court.
2. We Agree on Dividing Assets
Often determining factor in whether an uncontested divorce is right for any party is whether or not they have discussed the divorce and the division of assets with their current spouse. If you have sat down and begun deciding how to divide assets; including things such as cars, retirement accounts, equity in the home, spousal and child support, then an uncontested divorce maybe right for you. Remember, that not all decisions regarding assets need to be made, before you seek the advice of an attorney, but, if you have decided what to do with a few of the major assets, then an uncontested divorce could be the way to go. A simple property settlement agreement can lay out how these assets will be divided, and also lay out a custody/visitation arrangement, and if agreed upon by the parties results in an uncontested divorce.
3. I Want What’s Fair
Another issue in deciding whether or not an uncontested divorce is right for you, is whether you can commit yourself to what is fair. In thinking about what is fair, would you give to the other party, what you would expect in return? It’s often difficult in a divorce to want whats fair for the other party, but can be worked out in an uncontested divorce. Uncontested divorces often involves some negotiations on unsettled matters where both parties are seeking to figure out what is fair for themselves and the other party. If this is a guiding principle of your approach to divorce, an uncontested divorce maybe right for you.
4. I Don’t Need to WIN.
A final, but often determining factor for an impending divorce, is whether clients are seeking a “Win Moment.” Many of the reasons for wanting a “WIN Moment” include adultery, abandonment, desertion, or even cruelty. While each of these constitute a valid legal basis for a fault based ground of divorce, they rarely result in the “WIN Moment” that some clients look for in the divorce process. By “WIN Moment,” I mean the moment when a Judge will look down at each party and state that one person’s actions were the reason for the divorce, and for that reason they should be punished. The reason for this, is the cost of litigating a fault based ground of divorce, and the economic disparity that results from ruling solely based upon fault. Few Judge wish to deal with these issue, or punish a party in these types of cases. So, whether an uncontested divorce is right for any party, really depends on whether they can let go of the desire for a “WIN Moment” in the divorce, even if it completely warranted. The simple truth is over 90% of cases result in settlements, and few ever have that “WIN Moment.” If you are not expecting a “WIN Moment” then an uncontested divorce maybe right for you.
In this blog I have laid out 4 of the things to consider in deciding whether an uncontested divorce is right for you. These include whether you have reached an agreement about dividing assets, whether you want to go to court, if you are willing to give and get what is fair, and finally whether you have a desire for a “WIN Moment.” As stated above, over 90% of cases result in settlement, so an uncontested divorce is right for more people than less. However, you should not compromise on some important issues that maybe litigated. If you are considering a divorce please contact Brandon C. Waltrip, Esq., or one of the other attorneys at Collins | Waltrip, PC and schedule a free consultation.