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The Dos and Don’ts of Uncontested Divorces
It has been said that he who represents himself in court has a fool for a client. Of course, this phrase was probably first uttered by a lawyer wearing a powdered wig, a lawyer who could not have imagined the concept of no-fault divorce, let alone the possibility of online divorce forms. The reality is that in contemporary America the majority of divorce cases involve at least one party who is not represented by an attorney. Chances are all of these people are not fools. Having said that, there are some pitfalls for the unwary pro se litigant. Check out the following list of dos and don'ts to help you navigate your uncontested divorce.
Do Exchange Information
Many people view a divorce as a game to be won or lost. A divorcing party with this mindset feels like she should not tip her hand for fear that doing so will give an advantage to her spouse. Consequently, this party may resist disclosing information about her income, assets, and debts. She may also hesitate to disclose her desired outcome in the case. The zero-sum paradigm of divorce is antithetical to uncontested divorce proceedings.
From a legal perspective, transparency is a crucial component of uncontested divorces. The purpose of divorce proceedings is to ensure that both parties are treated fairly. It is impossible for a divorcing party to assess the fairness of divorce documents without an honest and complete exchange of information on the part of the other party. Moreover, a failure to completely disclose income, assets, or debt may be grounds to have a Decree of Divorce vacated.
As a practical matter, a party to a divorce will likely feel uneasy about an uncontested divorce where he feels that the other party is hiding something. A full and complete exchange of all relevant information increases the likelihood of a settlement agreement. Further, an unwillingness to provide information will not give either party an advantage. Discovery rules afford a party to legal proceedings a significant power to acquire documents and information related to the other party, whether it be directly from the other party or from a third party in possession of the information. In essence, the other spouse is going to be able to get the information anyways, so both parties might as well cooperate.
Do Pay Attention to Detail
The Devil may be in the details, but if you have a dispute about your divorce down the road, the judge will need to stare the Devil right in the face. You may know which credit card account you are agreeing to pay off, but a typo in your documents might force the judge to interpret your divorce to mean that you have to pay off a different account. In general a judge will only be allowed to interpret your Decree of Divorce by looking at the actual wording of the document, by rule she will likely not ask either party what was intended. This means that a judge could interpret your documents in a manner contrary to your intentions. The lesson here: double check and triple check your documents before they are filed and signed. Also, a vague provision of your decree may turn out to be entirely unenforceable. Your documents need to be clear on the responsibilities of each party as well as the consequences for a noncomplying party.
Do Consult an Attorney
While the purpose of uncontested divorces for many is to avoid hiring attorneys, it is wise all the same for divorcing parties to consult with counsel regarding their respective rights and obligations. Many legal issues related to divorces may appear to be straight forward; however, certain issues are nuanced and counterintuitive. Meeting with an attorney can actually be quite affordable. In fact, many attorneys offer free initial consultations. There are also several attorneys in any area who will do consultations for a reduced fee or low flat fee. It is time and money well spent.
Once divorcing parties have discussed the propriety of the agreement reached by the spouses, the agreement must still be written up in a legal format. This process can be confusing for many parties who try to create divorce documents on their own since court forms tend to be very cumbersome and confusing. This should not deter divorcing parties though. Some attorneys will prepare divorce papers online for a low flat fee. Reduced attorney fees associated with these so-called online divorces allow the parties to benefit from the low costs of uncontested divorces while ensuring that the documents are legally sufficient.
Do Allow for Detours
Most parties to a divorce are worried about having very specific provisions that painstakingly detail every possible eventuality. Sure, details are important. In fact, the importance of details is outlined above. Details are meant to protect the parties. However, when unforeseen circumstances arise, one party could use the details as a sword against the other party. ex. a father refuses to trade weekends with his child’s mother in order to accommodate her family reunion because he’s not “allowed” to take her weekend. It is wise, therefore, to include a provision in a decree of divorce that affords the parties a certain measure of flexibility. In other words, a decree of divorce can be drafted to anticipate minor variations and last second changes to schedules, allowing parties to temporarily deviate from the terms of the decree when both parties are in agreement. When such a provision is included in divorce documents, the other party cannot use the excuse that the decree won’t permit them trade days. Just make sure that these temporary detours must be agreed to in writing.
Don't be Petty
While you don’t have to be happy about getting divorced, there is no need to make things miserable for everyone involved. Pettiness and vindictiveness are counter productive to uncontested divorces; in fact, they can completely undermine the proceedings. First, by their very nature, uncontested divorces require an agreement between both parties. That is to say, the parties must be able to discuss issues concerning property, debt, and children and then reach an agreement on these issues. It goes without saying that a poor attitude on the part of one spouse will dramatically reduce the likelihood of an agreement. Second, on most issues disagreement is simply not worth it. Divorces are already taxing emotionally, do you need to compound the misery by insisting on splitting up the washer and dryer? Does it even make sense to split up the washer and dryer? Furthermore, from an economical standpoint, most items of property are not worth fighting over. Do you really want to spend $200 per hour to have attorneys fight over a washer and dryer that likely are not even worth $200 combined? It is far more practical to set emotions aside, and to calmly discuss a fair division of assets and debts.
Don't Settle for Verbal Promises
It is said that a verbal contract is worth the paper it’s written on. While in the strictest sense this platitude may not necessarily be true, it is wise to put everything in writing since, in general, it is much easier to enforce a written agreement. This especially holds true in divorce actions. A party’s unwillingness to put something in writing raises an enormous red flag. After all, if that party intends to make good on the promise, what harm could come from putting it in writing?
Don't Leave Joint Accounts Open
Joint accounts are often overlooked in uncontested divorce proceedings. You can save yourself a lot of grief and maybe even a lot of money by taking a few extra steps. First, you should list all of the existing bank and investment accounts in your divorce documents, including the account balances. The decree of divorce should award each account to one of the parties and should specify the allocation of funds to each party. The same should be done for each credit account, specifying which party shall be responsible for paying the debt of each account. In doing so you can avoid any uncertainty concerning the parties’ respective rights and responsibilities as to accounts. In addition, by making a complete outline of your accounts you might also jog your memory as to the existence of unused accounts. Second, you should state in the divorce documents whether each account will remain open or closed. Joint accounts should be closed or, at the very least, provide that the name of the other party should be removed from the account. Finally, with respect to joint credit accounts, the parties should specify whether each given account will remain in the names of the parties jointly, or whether a given account should be placed in only the name of the responsible party. Economic realities may prevent the parties from putting joint debt in the name of only one party. In any event, the divorce documents should restrain the parties from incurring any more debt on credit accounts, otherwise one party could take advantage of a joint credit limit for his or her sole benefit, at the expense of the other party’s credit score.
Don't Leave Things Open-Ended
Nothing gets done without a deadline. This is particularly true in the law. In fact, without a deadline, a provision of a decree of divorce may be rendered meaningless or unenforceable. A court may compel a party to comply with a an order only once that party is held in willful violation of the order. Consequently, it could be difficult or impossible for a judge to rule that a party has purposefully violated a decree of divorce unless the decree prescribes a deadline for compliance. After all, it cannot be said that a person has willfully failed to meet an obligation until the time has passed for the obligation to be performed. For this reason, divorce documents should always specify a deadline for compliance. Otherwise, a spouse who has been ordered to pay a joint credit card bill would only have to pay the minimum monthly payments on the account to remain in compliance, leaving the other spouse without recourse for the several years during which the total balance of the card would remain on his or her credit score.
Don't do it Just to get it Over
Uncontested divorces make a lot of sense in situations where the parties do not have anything to fight over, such as where a couple have little to no assets. No contest divorces may also make perfect sense even where a couple have considerable assets, as long as both parties are willing to be fair and reasonable. However, uncontested divorces are not appropriate in all situations. In some cases a spouse has cause to believe that the other spouse is hiding assets. Depending on the value of the assets in question, it may be prudent to retain counsel in order to make a complete inquiry. In other cases one spouse might manipulate or unjustly exert control over the other spouse. In such cases it would not be wise for the victim-spouse to negotiate directly with the abuser-spouse. It is important to keep in mind that it could be difficult or impossible for a judge to make changes to your divorce after it is entered. Given this, parties should resist the urge to go through with an uncontested divorce just to get it over. A divorcing couple should wait for the right time and the right agreement, there is generally no benefit to rushing through a divorce.
Don't Forget to Follow Up
Don’t forget to follow up with the court to make sure that the paperwork has been processed and that the decree of divorce has been officially entered. From time to time a court may inadvertently overlook or misplace properly filed documents before they are signed and officially entered. A divorce is not final until the court signs the necessary documentation. This would surely be problematic if undiscovered until the week before a subsequent marriage, preventing the wedding. Moreover, a delay in divorce caused by clerical issues could have adverse legal effects for the parties. It is better to be safe than sorry.