Monday, September 29, 2008

I Want an Uncontested Divorce

I often have prospective clients call and say that they want an uncontested divorce. Most of the time, that means that both husband and wife have agreed that they want to get divorced. When we ask a few other questions about some of the basics of a divorce (custody, child support, who gets the house, how to divide the retirement assets, etc.), we usually find either that no agreements have been discussed or that there are certain issues where there is definitely conflict.

Many people confuse "uncontested" with "no fault". Those people want to have a simple divorce with as little conflict as possible. They don't want mud slinging. Nevertheless, even relatively friendly people can require a lot of help to get to the point of agreement.

Aside from sometimes needing help to be able to be civil with each other, divorcing couples usually need professional help when there are significant assets and/or liabilities to allocate between the parties. Tax considerations may come in where someone may not expect them. For example, $100,000.00 from a retirement fund may not be worth (net) as much as $100,000.00 in house equity. Likewise, the retirement fund may work out better in the long run for one party if s/he isn't able to take care of, and pay for, the house. There are many considerations to be made in reaching an agreement in a divorce. Sometimes both parties are financially unsophisticated and sometimes just one party is unsophisticated, which puts that party at a disadvantage in negotiations.

Quick Summary
1. The Good: True uncontested divorces are cheaper and faster than contested ones, by a longshot. They are also less destructive to family relationships, which is very important when kids are involved. Uncontested divorces can be a great way to get what you want, rather than leave the decision up to a judge who doesn't care about you.

2. The Bad: The parties, or one of them, may agree under duress from the spouse. The result is sometimes an unreasonable deal because of pressure, threats, guilt or a desire to save the marriage by being generous in settlement. Obviously, some of the pressure comes from the spouse or other family members, and sometimes it is self imposed. The problem is that once the deal is done, and the situation changes, the deal can't be undone.

3. The Solution: Not surprisingly, the best step is to get professional help. An attorney may be needed, a financial expert might be beneficial and a counselor may help a party make rational decisions. Unless there are no children involved and there's insignificant property and little or no debt, the parties should get help. When there are significant assets or liabilities, there is enough at stake to at least warrant a consultation, and full representation is advised. Spending a little time and money to protect your financial future is a wise decision. A good attorney will ask questions about the issues and agreements when you come in and will follow that with advice on how to reach a settlement. You can save time, money and grief, even with an attorney involved, but be sure you choose carefully. Make sure the attorney's experience and approach match up with how you want to proceed. It's your choice.

Thanks to Dan Nunnely of Tulsa, Oklahoma who had two thoughtful posts about uncontested divorces in his Oklahoma Family Law Blog.

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