Benefits and Disadvantages of an Uncontested Divorce
Cheap Cost of Uncontested Divorce Weighed Against Competent Legal Advice
Most people who get a divorce just pick up the forms at their local
court house and undergo a cheap, uncontested divorce. The reason for
this is often that the assets to be divided are not worth the cost of
an attorney or that there is no child from the marriage. With no child
from the marriage
and no substantial assets between the spouses, an uncontested divorce
is a viable option. While these cheap costs (minimal filing fees and
court costs) are certainly a benefit, the biggest disadvantage of an
uncontested divorce is lack of adequate and competent legal counsel and
advice. In addition, divorce lawyers can make numerous filings and
motions that are outside the experience and knowledge of the average
divorce litigant. Spouses considering a divorce should consider all the pros and cons of an uncontested divorce before making a final decision.
The complex issues that a lawyer can advise a divorce litigant on include spousal support (alimony), child support, child custody, and division of property. Related issues to division of property can include things such as prenuptial agreements (sometimes called "antenuptial agreements"), postnuptial agreements, and separate property.
It is a major disadvantage not to have an attorney look at
all the property and the source and timing of ownership in order to
determine the rights of each spouse. For example, property that existed
before the marriage and was owned by one spouse is generally separate
property. The opposing spouse is generally not entitled to such
property but may be entitled to part of it in certain circumstances,
such as extreme destitution. Those undergoing an uncontested divorce
will not have the benefit of such advice.
Of course, one benefit of an uncontested divorce is that it is quicker and less painful than a contested divorce. If the spouses are very reluctant to undergo extensive litigation and the frequent resentment and hard feelings that it brings on, then an uncontested divorce can be beneficial to the mental well-being and "closure" for both spouses. Thus, an uncontested divorce is most beneficial to spouses who have relatively few assets, no children, and desire to have an amicable split so they can just move on with their lives.
But for couples with substantial assets, an uncontested divorce is not always a wise option. Division of property is a very complex area of the law, and prenuptial agreements may even be completely invalid. If the agreement is deemed invalid, such as fraud, then all bets are off, and the property can be divided according to the normal rules. But an uncontested divorce, by its nature, is not going to include things like contesting a prenup. Therefore, the more assets that exist with at least one spouse, the more likely the divorce will need to be contested in some way.
Finally, the presence of a child from the marriage raises
the issues of child support and, sometimes more importantly, child
custody. Laypersons are particularly lacking in what factors a court
uses to determine child custody. Without knowledge and experience in
this area, a spouse who thinks the other parent is unfit, for example,
will be at a major disadvantage in making a clear argument to that
effect. Because lawyers work with these issues every day, only they
will know all the questions to ask and how to construct a compelling
argument to the court.
In short, the cheap costs and quick resolution can be major benefits to an uncontested divorce. This option is best for those with limited assets and no children or disagreements with child rearing and care. But the more assets and child issues a couple has, the more disadvantages arise as a result of failure to have an attorney and competent advice.