What Is an Uncontested Divorce?
An uncontested divorce is a divorce where both spouses agree on all issues, and the judge does not decide any matters. If a divorce is uncontested, the parties, or their attorneys, can prepare a decree, submit the decree to a judge, and, if the judge signs the decree, the parties are divorced.
Even if a divorce is “uncontested,” there still may be heated negotiations and arguments between the spouses. “Uncontested” does not mean that there is no hostility or acrimony. It merely means that, by the time the divorce is over, the parties have agreed on all the terms of the divorce.
Issues to Be Addressed in Divorce
In Oklahoma, there are eight issues that a court can decide in a divorce case:
Termination of the marriage
Property and debt division
Custody of the minor children
Visitation with the minor children
Restoration of a spouse’s former name
If both spouses agree on all of these issues, and if the judge signs a decree reflecting your agreement, then, there is an uncontested divorce. You also may be able to work out an uncontested divorce if some of these issues do not exist, and you and your spouse can agree on all of the existing issues. For example, if there are no minor children of the marriage, and the spouses can agree on property and debt division and alimony, you may be able to work out an uncontested divorce.
To achieve an uncontested divorce, the parties may be able to sit down and discuss these issues, and agree on all of the issues. If this type of negotiation does not resolve the issues, the spouses may go to mediation. Mediation is where both spouses (and their attorneys) sit down before a mediator. The mediator is a neutral third party; but he is not like a judge, in that he cannot order either spouse to do anything. The mediator will merely try to guide the spouses toward an agreement. Some mediators charge for their services; others are free. For more information about mediation, click on my post, “Mediation in Civil Cases.”
Some spouses are able to work out a partially uncontested divorce, where the spouses can agree on some of the issues but have a judge decide other issues.
Is an uncontested divorce a good idea?
In general, I recommend that my divorcing clients attempt an uncontested divorce whenever possible. I have two reasons for this:
If you go before a judge, you will have to go to a trial. You will have to pay your lawyer a very high fee for a trial. A trial, and the preparation for a trial, is also very time-consuming. A trial in a divorce case is also one of the most emotionally draining experiences any human being can ever go through. I’ve seen people emotionally destroyed by a trial in a divorce case. An uncontested divorce is almost always faster, less expensive, and less emotionally draining than a divorce that goes before a judge.
If you settle your divorce out of court, you (and your spouse) will have complete control over the outcome. You may not like everything you’ve agreed to, but no one will have forced you to accept the outcome. However, if you go to court, you will have to do whatever a judge tells you to do. In almost every one of my divorce cases that have gone to court, the judge hands down an order that neither spouse likes.
When an Uncontested Divorce Is Not a Good Idea
There are, however, certain times when an uncontested divorce is not a good idea. These situations include:
When one spouse insists on a divorce settlement that is completely unreasonable and will not budge. In this case, you should not agree to an unreasonable settlement, and you likely will get a more favorable result if you go before a judge.
When there is spousal or child abuse. If there is abuse, you don’t want to agree to a divorce decree that will place you or your child in danger.
When one parent is unfit, and the unfit parent insists on having custody of, or extensive visitation with, the child. Again, you don’t want to agree to a settlement that could harm your child.
Do you need a lawyer for an uncontested divorce?
I recommend that parties in a divorce seek an attorney. Even in an uncontested divorce, you and your spouse will still have to submit forms to a judge. These forms must be properly drafted; if the forms are not properly drafted, serious problems can result. Also, if your spouse hands you papers and tries to get you to sign them, there may be fine print that could harm you later. It’s best to have a lawyer review forms that your spouse asks you to sign.
For example, in Pitman v. Pitman, the Oklahoma Court of Civil Appeals dealt with an instance between a Wife and Husband where issues arose because they did not involve an attorney before signing papers in an uncontested divorce. In Pitman, the wife typed a petition and decree herself, then coaxed the husband to sign the decree. The decree awarded almost all of the property to the wife, with very little property going to the husband. Husband claimed that he had thought that the decree would give him one-half of the proceeds of the sale of the marital home. However, in the decree that was filed in court, there was no language that gave the Husband any interest in the marital home. At trial, Husband and Wife had different stories about who agreed to what, and neither could remember accurately what each spouse signed. The Court wrote,
"This controversy and the proceedings to resolve it arose from the "do-it-yourself divorce" of Husband and Wife. The questionable aspect of the property division as well as the considerable time and expense involved in litigating this dispute could have been obviated through the assistance of legal counsel at the outset. This case aptly illustrates the invaluable role of an attorney even in the "agreed, uncontested" divorces."
You don’t want what happened in Pitman to happen to you. Don’t go into a divorce, even an uncontested divorce, uninformed. If you would like the Persaud Law Office to help you with your uncontested divorce, contact us today.