When making the decision to divorce, it can be uncomfortable, overwhelming, and downright scary. During a period of time in which you need wise counsel and support from loved ones, it is commonplace to be bombarded with the divorce horror stories of others, which then restrict your ability to make a truly informed decision that serves your best interests. For example, perhaps an aggressive and litigious opposing counsel represented one’s spouse, which caused the acrimony to escalate. Or maybe the judge assigned to one’s case was biased, disgruntled, and disinterested, and the divorce outcome was inequitable as a result. Of course, one of the most common complaints is that the divorce cost tens of thousands of dollars and the only individuals who benefitted in the end were the attorneys.
If you find yourself in this place of fear, which is quite natural, by the way, please take a very deep breath and perhaps a sip of your coffee or tea and allow me to clear up some divorce misinformation. I am here to tell you that although divorce is a significant and complicated life transition, many cases can be (and are, each day) resolved in a manner that does not resemble those professed horror stories. In fact, believe it or not, the vast majority of divorce cases are ultimately “uncontested”, even the “crazy” ones, in my experience.
What is the difference between a “contested” and “uncontested” divorce, you ask? A contested divorce is one whereby the divorcing parties are unable to resolve their divorce issues, such as the division of assets and debts, alimony, child support, and custody of the minor children, and must look to a Judge to make the determination. Put more succinctly, a contested case means litigation – preparing for and going to Court for a final trial. The preparation part can include countless different and costly legal measures, such as sending out subpoenas for the production of documents; taking depositions of not only the parties, but multiple witnesses; hiring experts to perform investigations and to weigh in on various financial and/or child custody matters; and, participating in countless meetings with the attorneys to ensure the case is fully prepped for trial. It is an arduous, emotional, and expensive process, which could span the length of years (especially during this period of the pandemic when Court resources are limited but remain in high demand).
On the other hand, an uncontested divorce is resolved by the parties themselves, with the help and guidance of their attorneys, and in many cases, through the use of other resources, such as mediators, parent coordinators, co-parenting counselors, and financial professionals. Court is not off-limits in an uncontested divorce case. Judges can be relied upon to resolve temporary issues (such as, who is going to live in the marital residence during the legal proceedings?). Nevertheless, in an uncontested divorce, it is the divorcing couple who is ultimately responsible for settling the case.
An uncontested divorce does not necessarily mean that everything is going to be a bed of roses throughout the divorce process. You are divorcing your spouse for a reason after all. Also, it’s worthy to note that every legal case begins as one that is technically “contested”, and it’s not until the parties sign on the dotted line of a settlement agreement that the matter can then be labeled as “uncontested”. The point being, there is still serious work involved in achieving an uncontested divorce, as well as a big dose of perspective and compromise. Divorces cannot reasonably be resolved until there is a clear picture by both parties and the attorneys of the value of the marital estate, and sometimes, the circumstances may be such that one or both parties may be mentally unready to discuss resolution of a child custody matter until a third (3rd) party neutral, such as a Guardian Ad Litem or child therapist, makes a recommendation. In other words, there are certain legal measures that are taken by the parties and their attorneys, irrespective of a matter being contested or uncontested. But that is par for the course in divorce, and your attorney should be very well equipped to manage this and to significantly lighten the burden that you would otherwise feel if you were unrepresented.
The genuine appeal of uncontested divorces is that they are significantly less expensive than contested divorces, as the attorney’s fees associated with trial preparation are largely avoided; the life of the uncontested case tends to be shorter because the need for depositions, Motions hearings, and other pre-trial measures are lessened; and, in the context of uncontested divorce cases, the degree of stress, acrimony, and emotional output is typically reduced (#understatement), and it will be much less awkward to see your ex-spouse in years to come at graduations, weddings, and the hospital when grandchildren are born. In short, the benefits of an uncontested divorce versus a contested divorce are considerable.
Should you attempt to avoid litigation and pursue an uncontested divorce? Absolutely. For the benefits described above, that should be the goal of any party or attorney in entering the case. Of course, it takes two to tango, and there are occasions where an exceptionally unreasonable and litigious spouse will require trial. However, what can be done to strengthen the likelihood that your divorce case will reach the uncontested finish line?
The most significant piece of advice I can give to an individual who is hopeful for an uncontested divorce is to not sweat the small stuff. Rather, focus on the bigger picture, which is working towards a divorce that maximizes your financial security, yet balances that against your happiness and mental stability and the happiness and mental stability of your children.
That means, when your husband brings the children back to you fifteen (15) minutes later than he was supposed to, not treating the situation as though he did not return the children to you at all. Or, if your husband’s appraisal for the marital residence comes back at $500,000, but you are convinced the house is worth $550,000, choosing to be reasonably flexible as to the value rather than to dig your heels in. When you demonstrate some grace and flexibility, you, in turn, find that your spouse is more inclined to meet you in the middle. This can be easier said than done, given what your husband may have put you through. Keep in mind, however, the bigger picture benefits of settling your case versus going to trial.
Moreover, if at all possible, invest in a regimen of self-care during this period of transition, such as participating in therapy, working with a divorce coach, joining a support group, going to church, exercising, getting a massage, writing in a journal, etc. Find what it is that provides you with a healthy sense of peace and rely on that when the going gets tough. And, an added bonus of self-care – your perspective will be sharper, and you will have a better mindset come negotiation/settlement time.
My final piece of advice, particularly in the context of settlement negotiations, is analyze the costs and the benefits of pursuing a particular position. For example, is it worthwhile to spend thousands of dollars in attorney’s fees to litigate the issue of child support when you and your spouse are only $100 a part? Does it make sense to spend time in mediation time arguing over $1,000 that is missing from the joint checking account, when the collective hourly rate of the attorneys and the mediator is $1,200? In essence, although you might be justified in taking certain positions in your case, you may find that pursuing justice is outweighed by the costs. In other words, pick and choose your battles, particularly those that are going to produce the biggest benefit to you.
In closing, divorce is a process, or sometimes more aptly put, a rollercoaster. While reaching a divorce settlement might seem like an impossible feat in the moment, there is actually something that you and your husband likely agree upon. That is, an uncontested divorce case is mutually beneficial to you both, and for that reason, you will most likely reach the uncontested finish line eventually.