Understanding Different Types of Divorce

The Benefits of an Uncontested Divorce

There are multiple benefits of uncontested divorce compared to a litigated divorce. These include:

• Uncontested divorce avoids court, therefore saving time and reducing stress;
• Uncontested divorce can preserve an amicable working relationship between parties, which may be important if they will have future interactions, such as those involved with children;
• Uncontested divorce is faster than contested divorce;
• Uncontested divorce is more affordable than contested divorce.

How are Issues in an Uncontested Divorce Resolved?

In an uncontested divorce, the parties will start by exchanging Statements of Net Worth, and then convene at a four-way conference (the parties and their attorneys). The four-way is a collaborative process in which the parties’ needs and expectations are explored with the goal of finding common ground and reaching an agreement.  Sometimes it takes more than one meeting to reach an agreement, especially if there is a need to value assets or explore representations made during the conference.  Negotiations are generally conducted with a view to what a judge would do if the case were to go to trial.  As such, it is important to be represented by counsel who is knowledgeable about the law, as well as a capable negotiator.

If the parties are successful in reaching an agreement on all issues, the terms are drafted into a comprehensive written Stipulation of Settlement that includes details and enforcement language that exceeds the original “handshake” agreement.  As such, some further negotiation over the language occurs once the agreement has been drafted.  This generally occurs by letters and phone calls between attorneys, who separately consult with their clients.

Once the agreement is finalized, it is signed and notarized.  There are numerous other documents that must be drafted once the agreement is done, including a proposed form of the judgment of divorce, findings of fact and conclusions of law, and numerous affidavits.   These documents are mostly drafted by the plaintiff’s attorney, who submits the Stipulation of Settlement and the other documents to the Court clerk, with a request that a judgment of divorce be issued by the Court that incorporates the agreement into the judgment of divorce.

If the parties are unsuccessful in reaching an agreement, one of the parties will usually request that a judge be assigned to the case.  This is done with the filing in court of a Request for Judicial Intervention that gets the case assigned to a judge and put on the court calendar for a preliminary conference.  Once the filing is made the case is considered a contested divorce.

It is important to understand that some cases are not easily settled, despite the best intentions of the parties. Sometimes each of the parties honestly believe that he/she is the better parent, and should be the custodial parent.  Sometimes the parties disagree about the earning capacity of one or both of the parties, so they are unable to settle child support or maintenance.  Sometimes disagreements cannot be readily resolved with a compromise because the parties’ positions are too far apart, and litigation is needed to resolve their differences.  Of course, there are many cases that cannot be resolved out of court because one or both of the parties is still too angry about the breakup of the marriage, or is an uncompromising or difficult individual.

It is important to consult with a knowledgeable attorney about the likelihood of reaching an agreement out of court before you invest in the process of trying to reach an out-of-court agreement.  It may seem counter-intuitive, but pursuing an uncontested divorce when it is unlikely to settle quickly can make it more expensive than a contested divorce, because when uncontested negotiations fail, the case has to go to court to be resolved.  In that event, the parties pay more in attorney’s fees to get divorced than they would have if they had simply taken the case straight to court at the beginning.  An experienced attorney can help you understand whether your case will present issues that may prove impossible to resolve out of court.