Legal Nuggets- Divorce: Contested or Uncontested
Many people are confused about the meaning of an “uncontested divorce.” This confusion stems from the fact that divorce cases encompass many, many issues. For example, in a divorce the parties divide ownership of all marital assets and establish custody and visitation for all their children. Other issues may include alimony, child support and attorneys fees. So while the issue of divorce may not be contested by your spouse, all the related issues may be disputed.
When an attorney speaks of an “uncontested divorce” she or he is referring to a divorce case in which ALL the issues are uncontested, not just the issue of divorce.
Additional confusion arises from the question of whether the divorce is a no-fault divorce or a divorce based on fault grounds. A no-fault divorce is generally one that is based on the fact that the parties have separated for a required period of time and do not intend to cohabitate in the future. A fault based divorce is one granted on grounds, such as adultery, physical cruelty, or habitual drunkenness.
Thus, a no-fault divorce can be contested and a fault based divorce can be uncontested. It all depends on the circumstances of the case.
The confusion over these terms can be problematic when you are seeking an estimate of attorney’s fees from an attorney you are considering hiring to obtain your divorce. If you say you want an uncontested divorce and want an estimate of the attorney’s fees, be certain that there are no issues that could be disputed in the case. How do you reach that certainty? Go over the following check list and decide if you and your spouse could possibly disagree over them. If you answer yes then your divorce is not really “uncontested.”
- Who will get to continue living in the martial abode (house, apartment, mobile home)?
- If you have acquired other property (whether real or personal) during the marriage, who will get to keep it?
- Do you have any pets? Who will own and control them?
- Do you have life or health insurance that names the other spouse as an “owner” or “beneficiary” or “insured?”
- Do either of you have children? Who will have custody, who will be allowed to visit the children, and who will support the children?
- Did you buy a car during the marriage? If so, who will get it and all its related expenses and responsibilities?
- Are there any possible tax liabilities that arose during the marriage, such as capital gains or other taxes on the withdrawal of money in a retirement plan, sale of real estate, or employment of a worker?
- Are there any joint accounts or joint credit cards or other debts?
- Have either of you signed any long-term contracts that could bind the other, such as a lease, waste disposal contract, or a furniture rent-to-own contract?
Because of the complex relationships we build when we are married, it can be very involved to separate the parties. Thus, you need to be aware that there are many potential issues that can raise their ugly heads when you seek a divorce. Your divorce will not be truly “uncontested” unless there are no issues that you and your spouse disagree over.
Call me to discuss your divorce case and I will help you sort out the possible sources of disagreement. If your divorce will be truly uncontested, then I can represent you at a very reasonable rate. However, if your divorce will have contested issues I will have to take them into account when quoting you a fee.