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Benefits and Disadvantages of an Uncontested Divorce

Updated on December 1, 2009

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.

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    • profile image

      Jimmy 

      7 years ago

      Well, I think I'm starting to understand your argument now. And the problem is you are mixing the standards of legal issues. The best interests of the child is the standard for child custody, parenting time and support. While those issues are included in a divorce proceeding, that is not the standard for the actual divorce. The standard for the actual divorce is separate and apart from the child issues. I'm sure no lawyer has told you that you can mix these standards. To put it simply, you are trying to apply a standard (best interests of the child) that is not the primary standard for divorce.

      The child has no standing in a divorce suit, and you, as a parent, cannot somehow establish that standing on behalf of the child. And if you think you are entitled to do that, just consider that the divorce is between the husband and wife. It is a separate relationship. What is your theory that the children have the right to interfere in the private adult relationship between their parents? It is not logical.

      "Insupportability" simply means that there is no compelling reason to sustain the marriage because it is broken beyond repair. That's a very low standard, and you haven't clearly cited one case that would show that standard to be unconstitutional. Come on. Lawrence v Texas and Roe v Wade have nothing to do with marriage and divorce. Why are you even bringing them up?

      The existence of children in the marriage in no way means that the children will be better off if the marriage remains intact. So even if you could apply the standard of "best interests of the child," you don't somehow automatically win. Forcing a child to live in an unharmonious environment doesn't sound like the best interests of the child to me at all. Just because that is your personal opinion doesn't mean a judge has to agree.

    • Dada_Phil profile image

      Dada_Phil 

      7 years ago from Texas

      Great advice that really makes sense. Considering all the factors and being informed is absolutely logical. I think that having enough information even before you begin to seek legal advice is vital. Going in with your guns loaded, as they say.

      A little confusion as you are talking about an uncontested divorce though. You are speaking of contesting the property division and custody no doubt and not actually contesting the divorce. Right?

      My take is that by contesting the divorce, you would be contesting the suit for dissolution to keep the marriage intact. We had shared our thoughts on that earlier. I think that ties in to this hub perfectly since you are giving consideration to the cost/benefit of disputing the property division, etc..,

      My considerations focus on a narrow, more specific scenario dealing with the no fault ground of insupportability when children are involved. This is where the ability of the attorney is irrelevant in arguing the specifics of property division because the trial judge has seemingly endless discretion and does not base the final decision on the merits of the argument but only on factors that the judge personally believes are in the child's best interest.

      What I have found to be true is that no attorney is willing to discuss the consequences of not contesting the ground being pleaded (no fault) for the child's best interest. By not contesting this, the respondent is effectively inviting the court to decide the issue of what is in your child's best interest. You would waive any constitutional rights that you have in your authority over your child and give that authority to the courts to make decisions concerning the child’s welfare.

      Consider this, until it can be shown that the respondent father has either waived or forfeited his parental rights, and as long as he contests the divorce for those best interests of his children, his interests and the parens patriae interests that the state has concerning the children are identical and the court does not have discretionary authority to oppose the legislative will of the State’s policy. It cannot and never has been found to be a legitimate argument that divorce on no fault grounds is in the child’s best interest because it could never overcome the rebuttal presumption of the 2 parent intact family. To overcome the legal presumption held in statute, the plaintiff mother must demonstrate a significant harm to the child’s physical, psychological or emotional welfare and the no fault statute of insupportability does not carry any harm element to produce such an argument, unlike the fault based grounds.

      Here is a website that you can go to that will explain this in better detail than I would be able to here. Please take a moment to check it out.

      http://insupportable101.webs.com/contestingnofault...

      Like so many other laws that have been shown to be constitutionally defective, some of which had remained in Texas law for a length of time, §6.001 Insupportability can be shown as conflicting with the U.S. Constitution on several grounds, conflicting with the opinions of higher court rulings, and , as interpreted by the courts, in direct opposition to State’s policy. If it had ever been given the opportunity, this statute would more than likely fail judicial scrutiny.

      Does this sound absurd? Not really if you understand the basic history of American Jurisprudence. If you have the time, do a Google search on “Blaine Amendments” ,

      “Texas miscegenation laws” and “Houston v. Hill”. Although I do have my disagreements with the courts being used to further an agenda, Roe v. Wade and Lawrence v. Texas do have a role in developing the understanding of our privacy rights held under the Constitution as well. It would do well to recognize how long these statutes remained on the books before any consideration was given to repealing them on grounds of their constitutionality.

      As a Staff Sergeant, you must understand the problems that other service members have when a cheating spouse decides to divorce them when they are deployed overseas and the court grants custody to the cheating wife. There is no way of justifying no fault in consideration of how it is being abused to cover the wife’s infidelity. Wouldn’t you agree?

      I’d be happy if you would consider this and give any feedback that you may have to offer.

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