What Makes A Divorce “Uncontested”?
As the old adage goes: “Nothing comes together faster than it falls apart—except a marriage.” The relatively small number of pre-marriage requirements is dwarfed by the process required to end a marriage. In fact, a marriage is one of the only contracts that requires court action to end. This does not mean that every divorce must be tried by the judge, only that the court approves the agreement reached and issues an order dissolving every marriage. Below is an overview of how divorces can be resolved out of court and what types of divorces are likely to be resolved in these ways.
At any time prior to the court entering an order dissolving the marriage, the parties can agree to a settlement. The key to a settlement is complete agreement: the spouses must agree on how property is to be divided, custody of the children, amount of spousal support, and the amount of child support. If the spouses agree to all these terms, the proposed settlement will be given to the court for approval. The court will be chiefly concerned with child custody and support. The order should also be somewhat reasonable in its terms—not fundamentally unfair to one party. So long as the court is satisfied with the proposed agreement, it will enter the settlement as the decree of divorce and the matter will be resolved.
As noted, this can happen at any point in the divorce. The spouses may completely agree to all essential terms from the onset of the divorce, bringing settlement immediately after the decision to divorce is made. These types of divorces are fairly uncommon, though. More commonly, settlements occur after filing and some degree of investigation—known as discovery—by each side. This is because the discovery process allows each side to gain information that illuminates the case. By learning what assets each side has, what each side wants out of the divorce decree, and what each spouse is willing to sacrifice to reach the desired outcome. Once these facts are known, settlement becomes easier and easier to reach. Even after a case had been submitted to the judge at trial, the two sides can reach a settlement agreement. The court will always have to approve a settlement, though, no matter when it is reached.
Another form of out of court resolution, also known as alternative dispute resolution in legal jargon, is mediation. Mediation can come in to forms: facilitative (passive) mediation and evaluative (active) mediation. The goal of both types of mediation is reaching a settlement agreement, guided—to some extent—by a third-party: the mediator. In facilitative mediation, the mediator lets the spouses “talk it out,” trying to open channels of communication to facilitate a settlement. Evaluative mediation is much more structured. The mediator will generally bounce between rooms, with each side in opposite rooms. The mediator hears the positions and evidence of each side, and offers independent advice regarding the strengths, weaknesses, and likelihood of success for each side. The two sides will generally each present offers and counter-offers, trying to reach an agreement. In either type of mediation, if no agreement is reached, the litigation will continue on to trial. If an agreement is reached, the proposed settlement will be offered to the court for approval.
Settlement and resolution by mediation are most likely to succeed in uncontested divorces. An uncontested divorce is one in which the parties are both (1) amicable towards one another and (2) agree as to all essential terms of the divorce. It is not uncommon for a couple to start the divorce process honestly believing they fit these criteria, but finding that they don’t in fact agree to all necessary terms. For example, a couple without children may agree to divorce and divide property 50/50. However, one spouse may take “50/50” to mean both property and debts, while the other spouse only thinks of dividing the property. This can lead to a strong disagreement between the spouses, and ultimately make the divorce contested. When children are involved, uncontested divorces become extremely unlikely. It is only natural that each parent will want what’s best for the children, but what each parent thinks is best for the children will likely be very different and skewed towards more time with that parent. Again, this is not a matter of being selfish or unrealistic, it is just the nature of being a parent.
It is also worth noting that amicability between spouses can also erode. This can go hand-in-hand with the development of disagreements on terms of the divorce. As differences develop, the spouses may begin to attribute these difficulties to the other spouse. This can quickly lead to a desire to fight the other spouse on issues that aren’t really at issue. One important role an experienced attorney can play is the facilitator when things get heated. This keeps the option of settlement open, even when bumps in the road occur.
Today, the vast majority of divorces are settled rather than tried before a judge. Using out-of-court resolution strategies can remove the potential unknown of the judge deciding the terms of your divorce, potentially resulting in terms that neither side is completely happy with. An experienced family law attorney will know how to use these alternative dispute resolution strategies to find agreeable solutions for divorces. However, having an attorney to help achieve a fair settlement is essential, even if a divorce may seem uncontested at the beginning of the process. If you need the help of an experienced divorce and family law attorney in Johnson County, Kansas feel free to contact our office.
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