Uncontested Divorce Issues

By Jill A. Duffy

Attorney, Cordell & Cordell

Wouldn’t it be nice if we could all just get along? That is the premise behind an uprise in what is being called no contest or uncontested divorce.

An uncontested divorce is a divorce where the parties have already agreed on all the important issues. Some uncontested divorces can be handled without an attorney, but there are a few good and cost-saving reasons to hire an attorney.

What is an uncontested divorce?

In these cases both parties want to be divorced, and have already come to an agreement on a division of their property and debt, custody of any children, and payments of child support and/or spousal support.

An uncontested divorce is not the same as a no-fault divorce. In states with no-fault divorce, the parties can be divorced even though, in the eyes of the law, no one did anything wrong, and even if one party does not want a divorce. Often, even in no-fault divorce states, parties need assistance to come to an agreement on the terms of their divorce and property settlement.

An uncontested divorce can happen in any state. There is no special procedure or form for an uncontested divorce.

A normal (contested or uncontested) divorce proceeds with roughly four steps: filing for divorce, answering the complaint; reaching agreements (either mutually between the parties, with a mediator, or through litigation), and the entering of a final order, dissolving the marriage. Some states also have another step, proving fault.

Uncontested divorces must still follow your state divorce laws and local procedures for the dissolution of a marriage. The only difference in procedure for an uncontested divorce is that the “reaching agreements” phase (which can often be long and expensive) is already over.

Do we need an attorney for an uncontested divorce?

An uncontested divorce will be much easier for the do-it-yourselfers if it is a short-term, childless marriage. The longer the marriage, and the more assets and debts acquired, the more complicated things can get. Adding children to the mix also tangles things up a bit. Many states have mandatory child support guidelines and complicated formulas for calculating them.

There is no law that requires anyone to hire or seek advice from an attorney before getting a divorce. When a person represents himself or herself in any type of case, this is called being “in pro per” or appearing “pro se” (Latin for “by one’s self”).

Although you have a right to represent yourself in court, it is often wise to at least seek the advice of counsel before finalizing a lawsuit (a divorce is a lawsuit).

Frequently, parties will want to share an attorney, to help split the costs. Attorneys cannot represent both parties in a lawsuit. Attorneys have an ethical obligation to zealously represent their client, and cannot uphold that obligation if they are fighting on both sides of the case.

Although one attorney can be used, it is important to know that the attorney can only represent one party. The other party should, at the very least, have an independent attorney review the final agreement.

Why should I hire an attorney for an uncontested divorce?

If you’ve already reached an agreement on all material issues, hiring an attorney is a worthwhile investment. You have already eliminated the most expensive part of the divorce process. All that is left is to finalize the documents and ensure that the law will recognize that your marriage is over. Hiring an attorney at this point could save you thousands of dollars in post-judgment costs.

Here are some of the reasons that hiring an attorney for an uncontested divorce is worthwhile:

• Emotions. The decision to divorce is life altering, even when both parties know that it is the right thing for them to do. Many times emotions are still running high, or have not been dealt with at all. Having an emotionally neutral party in the mix, such as an attorney, can help ensure that you are not making emotional decisions that you may later regret. Your attorney cannot force you to change your mind, or fight over things you have already agreed to, but he or she can help you stay grounded and make decisions that are in your best interests.
• Deadlines. Every state has different deadlines for the filing of the necessary documents to obtain a divorce. Whether a divorce is contested or uncontested certain deadlines need to be met to keep the case moving toward the entry of an order dissolving the marriage. Missing a deadline could cause your case to be dismissed, and cost you more money to re-file it.
• Advocacy. Although you may be your best advocate, your wife knows how to push your buttons. You have been married for years, and she probably knows what she needs to do to get what she wants. Having an attorney helps confirm that your voice is being heard, and that you are getting a fair shake at what you worked so hard to acquire during your marriage.
• Protect yourself. Without formal legal training it is virtually impossible to know all of the issues that may come up in your divorce. Your spouse could be hiding assets from you. You could be entitled to a percentage of her pension or retirement benefits. She could be required to help you pay for education. If there are hidden, or difficult, issues in your case it is best to make sure they are taken care of by a highly skilled professional.
• Efficiency. The better your final order is drafted, and the more thoroughly it covers the issues, the less likely you are to find yourself back in court. Issues that come up after the marriage is over are often called "post judgment" issues, and can cost more than the entire divorce process cost. Additionally, there are sometimes multiple documents that need to be drafted at once and entered with your final order, such as a Qualified Domestic Relations Order (QDRO) to receive part of a pension. If these documents are not properly completed in a timely manner it will delay your receipt of benefits and could cost you a lot of money to be completed.

Every divorce is different, and depends upon the facts of the case. Consulting with an attorney before your divorce is finalized is always in your best interests. Cordell & Cordell represents men in contested and uncontested divorce across the nation.

Jill A. Duffy is an Associate Attorney in the Troy, Mich., office of Cordell & Cordell. She is licensed to practice in the state of Michigan. Ms. Duffy received her BA in Psychology and Spanish and graduated Magna Cum Laude from Oakland University. She received her Juris Doctor from Michigan State University College of Law and graduated Magna Cum Laude.  

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