Uncontested Divorce: Attorneys on Both Sides?

An uncontested divorce is a divorce in which the parties have agreed on a resolution to all of the issues prior to the time the Complaint for Divorce is filed. If the parties have not reached an agreement on all issues at the time the complaint is filed, the case will be treated as a contested matter.

Fault vs. No Fault

In most jurisdictions, if the plaintiff pleads any of the fault grounds for divorce, it will be treated as a contested matter. Although the recognized fault grounds vary from state to state, a few of the most common fault grounds for divorce include:

Adultery;
Cruel Treatment;
Abandonment;
Confinement in a mental hospital; and
Incarceration.

All states now allow couples to obtain a no-fault divorce. Many no-fault divorces are uncontested. To obtain a no-fault divorce, the complaint for divorce must include the no-fault language set forth in the applicable state statute. Although the terminology which must be used to plead no-fault varies from jurisdiction to jurisdiction, no fault divorces typically involve a plea of:

Irreconcilable differences;
Unsupportability; or
Marriage irretrievably broken.

Uncontested Divorce Process

At the time the plaintiff files the Complaint for Divorce, she must also file a Waiver of Service and a Settlement Agreement. The Waiver of Service states that the defendant has received a copy of the complaint and is waiving the right to be formally served with the Complaint for Divorce; the defendant must sign the Waiver of Service.

The Settlement Agreement sets forth the agreement of the parties on all issues in the divorce. Common issues addressed in a divorce settlement agreement include:

Child Custody;
Child Support;
Visitation;
Alimony;
Property Division; and
Division of Debts.

The Settlement Agreement must be signed by both parties. Once signed, it becomes a legally enforceable contract.

Getting Legal Help: Should Both Sides Have Attorneys?

The Settlement Agreement is the foundation of the divorce and governs the party’s rights, duties, and obligations to one another after the divorce. Many times, an unrepresented spouse may agree to terms that he doesn’t understand or of which he doesn’t recognize the long term impact.

Although certain provisions of the Settlement Agreement, such as child support, child custody, and visitation may be modified, most other provisions cannot be modified. Courts will only modify the terms of a Settlement Agreement if they are vague or unclear; judges are simply unwilling to second guess the intentions of the parties months or even years after the divorce was finalized.

It is best that each party have a divorce attorney. Divorce attorneys play a vital role in assisting the parties in negotiating a settlement they can live with in the short term and in the long term. Moreover, uncontested divorce attorneys can explain to their clients why they should or should not agree to certain provisions being proposed by the other party and assist them in reaching a compromise.

Thinking About Divorce?