What is an Uncontested Divorce?

What is an Uncontested Divorce?

There is often great confusion regarding uncontested divorces.   It is important because lawyers often charge a flat fee for an uncontested divorce.   Attorneys can do that because in an uncontested divorce, the attorney can predict fairly accurately the number of hours he or she will need to devote to the case.  When a case is contested, the attorney can not predict what the other side will do or how long it may take to reach an agreement or even if the case needs to be tried before a judge or jury.

Signs for Cheap "Uncontested" Divorces Often Mislead Divorcing Couples

If you're like most people, you may see cheap yard signs on the side of the road advertising "uncontested" divorces.  Often the stated fees are around a couple hundred dollars or so, far less than what a lawyer would seek to take on a new divorce case.  The first thing you should know is that the advertised fee is just what the person wants to charge you, not your overall cost for a divorce.  In fact, in a divorce case, the filing fees alone often exceed $300.  So, once you realize this, it is easy to figure out these signs are highly misleading.

Next, you should also know that whoever answers the phone is probably not a lawyer, but just a person that wants to sell you forms which you could have gotten for free at a library.  If it is a lawyer that advertises in such a way, for numerous reasons beyond the scope of this article, it is safe to say that they probably aren't complying with the ethical rules relating to attorney advertising.  In addition, it probably wouldn't give you a lot of confidence in that attorney.  

Furthermore, people sometimes believe that if their spouse wants the divorce as well, then the divorce is uncontested.  Not true.   In fact, whether the divorce will be granted is hardly ever contested since nearly every state offers a form of no-fault divorce.  So, the party doesn't need to prove anything beyond the fact that they want a divorce. 

What is the difference between an Uncontested Divorce and a Contested Divorce?

An uncontested divorce occurs only when both spouses have agreed to all terms relating to the divorce.   This includes several broad categories such as

  • Division of the marital property and debt
  • Amount of any Alimony or Spousal Support to be paid, if any, and by whom.
  • Custody of Children including a Parenting Plan
  • Amount, Duration and terms of Child Support

Until everything is agreed to, the matter is contested.   If the divorcing couple has an agreement, it is incumbant upon the lawyer to fully inform the client of the reasonableness of the agreement and issues the client may not have considered.   Sometimes the divorcing couple may have different ideas about the terms when the agreement is actually reduced to writing.   More often that not, the parties did not consider certain issues such as tax issues, treatment of holidays in a parenting plan, the treatment of retirement plans and unvested interests, the true value of a small businesses. In addition, some assets that are often overlooked such as frequent flyer miles, memberships, deposits, rights to purchase tickets among others.  Furthermore, if either party has separate property, the attorney would evaluate whether there is any basis for the other spouse to claim all or part of that separate property or whether it should be recharacterized as martial property.   

A good lawyer will usually counsel the client regarding the benefits of having an agreement as opposed to fighting it out in court, especially when minor children are involved.  However, the decison on how to proceed is the client's alone.  The attorney needs to be sure the client's decision is an informed one.