In our law practice, we often hear people contact us saying they need a divorce but that it will be “uncontested.” Sometimes they are correct in saying this but in other cases, they don’t really understand what an uncontested divorce means. The meaning is broader than the spouses both agreeing they want the divorce.
An uncontested divorce is one where the spouses are able to reach an agreement on ALL of the issues presented in the divorce. These may include:
- Equitable Distribution of Assets and Liabilities
- Parenting Plan: Parental Responsibility and Time Sharing
- Child support
- Attorney’s Fees and Costs
Usually, these issues are agreed upon prior to the filing of the divorce proceedings. If even one of the issues is not agreed upon, the divorce is considered “contested.” As such, any issues not agreed upon will need to be resolved by the court.
If the parties are able to reach agreement on all of the issues, their agreement should be reduced to writing in the form of a “Marital Settlement Agreement” (this is sometimes referred to as an “MSA”). The MSA will then be presented to the family law court at a final hearing and the MSA will form the basis for the Final Judgment of Dissolution of Marriage. As a result, having a well-drafted MSA is extremely important. A poorly drafted MSA can sometimes cause serious problems.
The benefits of an uncontested divorce are many. They can include:
- Increasing your ability to control the outcome—going to court can be risky and unpredictable;
- Lessening the time involved in getting divorced—going to court can be very slow;
- Lessening the cost involved in getting divorced—going to court can be very expensive;
- Minimizing the emotional turmoil which a contested divorce can cause—going through a contested divorce can be very stressful.
Can an uncontested divorce be handled without an attorney? As with many areas of the law, the answer is “yes” but do you really want to risk not doing it correctly? We often have clients come to us after they have handled their own divorce, including preparing their own MSA, and now something has gone wrong. They then have to hire an attorney to fix their mistakes.
An example can help. John and Rebecca decide to divorce. They have no children but they do own a home. They decide to file an uncontested divorce using an MSA which they prepared. The MSA provided that their house would be sold but that in the meantime, Rebecca would move out and John would continue living in the home until it is sold. While the MSA stated the house would be sold, it did not cover how a real estate agent would be selected, how the sales price would be determined, and who would pay ongoing bills (mortgage, utilities, etc.) for the house. After Rebecca moved out of the house, their divorce was granted. Now, John will not agree to a real estate agent or to a listing price. He also is not paying the ongoing expenses. Since the MSA did not address these issues, Rebecca’s only choice is to hire a lawyer and go back to court. When she does, John hires a lawyer and the fight a nasty court battle ensues. A well-draft MSA, prepared by an attorney, likely would have avoided this mess. John and Rebecca tried to save some money doing it themselves but ended up spending much more money, taking significant time, and causing unnecessary stress trying to fix their mistakes.