WHAT MAKES A DIVORCE UNCONTESTED?
“Nothing comes together faster than it falls apart – except a marriage.” This old adage describes the contrast between the limited pre-marriage requirements and the extensive process required to end a marriage. Marriage is one of the few contracts that actually involves court action to end. Not every divorce has to be tried by a judge; it just has to be approved by the court, and the court has to issue an order dissolving the marriage. The following is an overview of how divorces can be resolved without a judge and what types of divorces are likely to be resolved in this manner.
Uncontested Divorce Settlement Agreements
Spouses can agree to a settlement at any time prior to a court order dissolving the marriage. The key to settling is that the spouses must agree on the basic terms for dividing the property, custody of the children, the amount, if any, of spousal support, and the amount, if any, of child support. If the spouses reach an agreement on all these terms, the proposed settlement will be presented to the court for approval. The court’s primary concern when considering proposed settlement agreements is with child custody and support. The court order should not be unfair to one party – it should be reasonable in its terms. If the court is satisfied with the proposed settlement agreement, the settlement will be approved, and the matter will be resolved with a decree of divorce.
As mentioned above, a settlement agreement may happen at any point in the divorce. For example, a settlement may be reached immediately after the decision to divorce is made if the spouses agree to all terms from the outset. However, this is relatively uncommon. Generally, settlements occur after both spouses file for divorce and engage in some degree of investigation (known as discovery). The discovery process allows each side to learn what assets they have, what each spouse wants from the divorce, and what each spouse is willing to compromise to reach the desired outcome. Once these facts have been discovered, it is easier to settle. A settlement agreement can also be reached later in the proceeding, even if the case has already been submitted to the judge for trial. But don’t forget, no matter when a settlement is reached, the court will still have to approve it.
Uncontested Divorce Mediation
Mediation, known as alternative dispute resolution in legal jargon, is another form of resolution outside of the court. There are two forms of mediation: facilitative (passive) and evaluative (active). The purpose of mediation is to reach a settlement agreement, guided by a third-party, the mediator. In facilitative mediation, the mediator helps the spouses “talk it out” to open channels of communication and facilitate a settlement. On the other hand, evaluative mediation is more structured. In evaluative mediation, the spouses are generally in separate rooms, and the mediator moves from room to room to hear each side's positions and evidence. The mediator then offers independent advice on each spouse's strengths, weaknesses, and likelihood of success. Both sides will typically make offers and counteroffers to reach an agreement. If no agreement is reached, regardless of the type of mediation utilized, the case will proceed to trial. However, if an agreement is reached, the agreement will be presented to the court for approval.
Uncontested Divorces
Settlement and resolution through mediation are most likely to succeed in uncontested divorces. An uncontested divorce has two elements: (1) both parties are amicable towards one another, and (2) both parties agree to all necessary terms of the divorce. It is common for spouses to begin the divorce process, honestly believing they meet both criteria, only to discover they do not actually agree to all the necessary terms. For example, a couple without children may decide to divide all property 50/50. However, an issue arises when one spouse thinks 50/50 means both property and debt, while the other thinks it means only property. This disagreement could make the divorce contested. When children are involved, the likelihood of a contested divorce is higher. Typically, the parent wants what is best for the children, which tends to differ for each parent and is skewed toward more time with that parent. This is not the parent being selfish or unrealistic; it is just the nature of being a parent.
Besides differing on the terms of the divorce, amicability between the spouses can also deteriorate. This deterioration typically follows disagreements on the terms of the divorce. As differences arise, the spouses may attribute these difficulties to the other spouse, leading to arguments over issues that are not really at issue. During this time, an experienced attorney can help facilitate and keep the option of settlement open, despite the bumps in the road.
Today, the majority of divorces are no longer decided by a judge at trial, but instead settled. Settling a divorce outside the courtroom can remove the uncertainty of a judge deciding the terms, potentially leading to results neither side is pleased with. Having an experienced family law attorney is important to achieving a fair settlement, even if the divorce appears uncontested at the outset. An experienced attorney will know how to use alternative dispute resolution strategies to achieve satisfactory outcomes in divorce cases.
If you need help from an experienced divorce and family law attorney in Johnson County, Kansas, feel free to contact the experienced attorneys at Roth Davies.