The Uncontested Divorce
The uncontested divorce does not get the attention the press affords the splits of the rich and famous. The courthouse drama makes for much better entertainment than the backroom paper pushing of the uncontested divorce. That's when it happens to other people.
When it happens to you, it's a different story. Divorce is scary. Lots of anxiety is involved. Most find it overwhelming. It is not surprising that for many the first thought is to go out and hire the most aggressive divorce lawyer they can find. Since you landed on this page, chances are you're lucky enough not to be one of them.
The vast majority of divorces can be settled with much less drama not to mention much less expense. It's called an uncontested divorce.
Uncontested doesn't necessarily mean that there will be no disagreements. There most likely will be. Uncontested just means that all these issues are settled without going to court.
How to File for Your Uncontested Divorce - Do it Yourself
Contains links to all the forms you need in all 50 states.
If your divorce is really simple, this and the information in this article may be all you need. It contains a list of links to all the form libraries in all fifty states if you have difficulty finding them on your own.
Anatomy of Divorce
There are four possible elements to every divorce:
- The decision to divorce.
- Property and debt settlement.
- Child custody and support.
- Alimony or spousal support.
The Uncontested Divorce Defined
For the divorce to be uncontested all of them have to be settled by agreement between the parties.
- Both must agree to the divorce or at least not object to it.
- All questions about how property and debt is to be divided have to be settled.
- An agreement about child custody and support must be reached.
- All spousal support questions have to be settled between the parties.
What if we can't agree on all these things?
If there is disagreement about even one of these, the divorce could potentially turn into a contested one. There is no need to panic right away, though.
Only a small portion of contested divorces actually make it to the courtroom drama we've come to love and hate as described in the news and entertainment media. The vast majority of the disagreements get settled way before then, but that is beyond the scope of this article.
Do you have to go to court?
Yes and no. Yes, in the sense that since marriage is a legal contract, undoing it is also a legal process and each State has its own rules for how it needs to be done. That involves filing at least a minimal amount of papers with a court.
No, in the sense that since an uncontested divorce is mostly paper pushing, there is rarely any reason to go to court. It can usually all be done by mail. There is one common reason why you might have to go. Parents are responsible for their kids until they reach a certain age or some other criteria have been met. If the settlement agreement does not adequately address that responsibility, the court may call you in to get it fixed.
What laws must we follow?
Lawyers tell you to get a will. Otherwise, State law will determine what happens to your stuff after you're dead, they tell you.
Why, then, would you want State law to determine how to live the rest of your life after divorce? The good news is you don't have to. Just like in the case of a will, you and your spouse can make any agreement you want. You don't have to follow State law if it doesn't match what you want and can agree on. The only exception is that you have to make sure the agreement you make regarding your children meets State standards. Other than that, it can be as creative and alternative as you want.
The law is only there to bail you out if you can't come up with a reasonable solution on your own, not the other way around.
The rules you have to follow are mostly procedural, what papers to file, where to file them and when. These rules can vary from State to State, County to County, even Court to Court.
Do you need a lawyer?
The short answer is no. A truly uncontested divorce involves only paperwork. No lawyer is required. The biggest challenge you will have is to deal with the sometimes arcane rules of the courts. This is where some professional help can come in handy, but it is not a requirement. We will take a look at some of the options below.
That being said, lawyers have vast experience with all kinds of divorces. It is often beneficial to at least listen to what they have to say. Many offer a free consultation. Use it to learn as much as you can about the process, just don't agree to anything. Above all, don't get sucked into turning your uncontested divorce into a contested one. We will get back to how to use lawyers in a little while below.
As mentioned above, lawyers are a virtual treasure trove of information about divorce. If you're at all anxious about an encounter with a real live one, lots of them readily pour out their knowledge on their websites, online forums or publish books about divorce.
Do not forget about the websites of paralegals. Paralegals often specialize in uncontested divorces. Their role is to navigate the mechanics of filing the paperwork involved. Paralegal websites are often particularly helpful in this regard.
Read as much of it as you can. The more you know the better. Just keep your eye on the ball and keep your divorce uncontested at all cost. Do not let any of it suck you into asserting your rights or digging into positions. There is always a negotiated solution to everything.
Assuming you have reached agreement on the four points mentioned above, here are four options:
- Do it yourself.
- Use an online filing service.
- Hire a paralegal.
- Hire a lawyer.
Do it yourself
The procedures vary from State to State.
The New York State court system is really confusing for the uninitiated. The courts have names like Appellate Division, District Court, City Court, Surrogate's Court or Family Court. The names do not really tell you which one to go to.
Once you have found the right one, New York courts have all the forms you need online. There you will also find a lot of encouragement to seek legal assistance. Clearly, the New York courts are not interested in dealing with amateurs. It looks a lot like a system designed by lawyers to steer you in the direction of lawyers.
When you do it yourself, the cost is limited to the filing fees. Filing fees can vary, usually depending on whether there are children under a certain age or not.
I can't recommend going this route unless you're prepared to take the time to understand how it all works and are prepared to deal with a fair amount of frustration.
Online filing service
There is no shortage of websites promising to take care of your divorce filing in three easy steps or so.
This is a really good and inexpensive option when your divorce conforms to the standard cookie cutter divorce. Steer clear if it is anything but really simple.
The quoted fee is usually in addition to the court filing fees mentioned above.
Some paralegals specialize in divorce filings and know all the ins and outs of how it works. You can get answers to your questions from a real human. You can be sure nothing falls through the cracks and no one will be able to question the validity of your divorce.
I highly recommend going this route. Paralegals can usually refer you to an attorney should you decide you need one. The only thing I would want to ask is what kind of relationship there is between them. The nature of the relationship isn't all that important. What is important is that it is all out in the open and transparent. Some paralegals are little more than marketing and referral sources for lawyers. You need to know.
The quality of the service can vary widely so ask around for a referral. If you think you have lots of questions, it is also important to find one who will take the time to answer them even if it costs a little more.
Again, the fee is in addition to court fees.
Sometimes this is little more than a glorified paralegal service. In fact, it is most often done by paralegals, but under the supervision of an attorney. That's why it costs a bit more.
Before you go down this road, there are a couple of things to consider. Attorneys don't make much money on this type of work. It is much better for them to get a full fledged contested divorce case with lots of billable hours. The low fee they advertise is mainly to get you in the door. Then they can use the free consultation to upgrade the service. Try not to get lured into this trap. If you choose to go this route, go there together and bring with you the agreement you have already made on all the four points at the beginning of this article. That will preempt any attempt to create a conflict where there is none.
I'm not saying all attorneys are like that but some will use the consultation to find out how much money you have. Then they can calculate how much of it they can get. If there is uncomfortably much talk about assets, leave and find someone else.
Using Other Professionals
The main benefits of the uncontested divorce are:
As soon as you begin to hire professionals, cost will invariably increase. What you may not notice right away is that control will also begin to slip away even if the adviser is a family member or friend. Be very clear about what their role is and who makes the decisions.
Having no money is probably the best way to steer clear of professionals. Then you have no choice but to figure it out on your own. You get to make all the decisions and there is no one to blame when you're wrong. The key is to make those decisions with confidence. Look only to the future. Never look back.
Ultimately, the decision to use professionals is up to you and depends on your circumstances. Here is an overview of the professionals you might want to consult.
Attorneys make money from lots of billable hours representing clients. Therefore, it may be a bit of a challenge to locate one who is willing to educate you and nothing else. It may be even more difficult to find one who is willing to be a consultant for both of you, but give it a try. There should be no reason for both of you to pay to get the same information from two different sources.
The good news is that, if you need this service and fail to find a good consultant, there is plenty of information available online and in books. It just takes a lot more effort to dig it out.
Again, you may have trouble finding a lawyer who is willing to work with you on an hourly basis. Most will want a retainer of several thousand dollars up front. They may also discourage you from talking to your spouse, the very thing that makes the uncontested divorce possible.
Do you need this service? Divorce is uncharted territory for most of us and it is easy to make a mistake. Attorneys have vast experience from all kinds of situations and their input can be really valuable. If you can afford it and it's available, do it. Just be sure to remain in control and not let them create a conflict where there wasn't one to begin with.
Otherwise, simply decide that if the settlement seems fair to you, it probably is. Don't look back. Don't discuss it with anyone. Put it behind you and move forward.
If you have assets beyond the basics, a few hours with a tax consultant may be the best investment you can get. Lots of financial decisions have tax consequences that may be difficult to predict for mere mortals. When one household becomes two, expenses will almost invariably increase. You need to keep as much as you can in what remains of your family and out of reach of the IRS.
You might think a life coach is someone who will take care of things for you. That is not so. A life coach is there to bring out the best in you so you can learn to help yourself. He/she can help you see clearly when emotions and other debris fogs up your view. A life coach can help you put the past in its place and focus on the future. Unlike a best friend or family member, a life coach does not get emotionally involved. He/she can help you evaluate options objectively.
This will also help you if you're the weaker part and power imbalance is an issue.
The therapist can help you understand what is happening to you, help you deal with guilt or pain. He/she can also help you move forward if you need to change some behaviors. Getting this kind of help can be maddening if only your spouse needs it. Be patient, however, it all works to leveling the playing field. A smoother court makes for better solutions.
Last but not least, the most important professional you may need is a mediator. A mediator can help you by providing structure in the chaos when your discussions deteriorate into fights, when workable solutions seem out of reach.
There are basically three different flavors of mediation. Here is a summary:
This method is most often practiced by attorneys. That is no surprise since lawyers are in the business of fixing things for people. It is in their DNA. They are conditioned to offer solutions. In this scenario, the parties' role is pretty much reduced to accepting or rejecting what the mediator suggests. For some, that may be exactly what they want. This is a good way to do it if they do not need to be able to cooperate afterwards.
Since lawyers have substantial subject matter knowledge, agreements reached this way are very likely to be fair. Power imbalances are not much of an issue. The downside is that the parties often feel left out of the process. They don't have ownership of the solution and may not be all that concerned with complying.
In the structured mediation the mediator is in charge of the process, when to talk about what and how to interact with each other.
The parties are in charge of the solution. Mediators who practice structured mediation do not generally tell people what to do and may have limited subject matter knowledge. Because the parties themselves come up with the solution, agreements reached this way are likely to be durable and compliance is likely.
The downside is that power imbalances may not be addressed adequately and solutions can be lopsided. It is advisable to at least have an attorney review the agreement before committing.
Mediators who practice affirmative mediation are often psychologists or therapists. Here the parties are in complete control of not only the solution but also the process of getting there. With the mediator's guidance they make up their own ground rules, how to interact with each other.
This is an excellent method when the parties need to be able to cooperate with each other afterwards. This becomes very important when there are young children involved. The parties will not only get their immediate problem solved, but will also come away with a method to resolve most of their future differences on their own.
Solutions reached this way are solid and compliance is likely.
Neighbor disputes and business partners can also benefit from this method.
The downside is, of course, that it is very time consuming and that can be maddening for someone who is the take-charge type.