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Falling on your Sword: Better Known as the Uncontested Divorce

Jun8
Uncontested divorce can be a good option for both people

Most of the time even in the worst of marriages, one party decides the marriage is no longer sustainable initially.   Unless the parties are without assets, debts, or children, then the uncontested divorce can be a slippery slope.   If the parties have absolutely nothing to fight about except if they should divorce or not, then usually an uncontested divorce will be the outcome.

An uncontested divorce being one where the parties agree on all the terms and sign off on documents to be submitted to the court.  Many times, only one family attorney is involved in the drafting of the paperwork and it’s a straightforward, relatively inexpensive proposition.

It becomes trickier when there are issues to agree upon and the parties don’t see eye to eye.  I’ve seen so many clients over the last 23 years of practice who have come in because their uncontested divorce has blown up in their face.    People who want out of their marriage often want out as quickly and as cheaply as possible.  Sacrificing your position just to get it done is a sure-fire way to end up in back in court.  I can’t possibly address every pitfall that may come your way but here are a few:

  1. Agreeing to no child support when you will be the primary caregiver.   If the child support is the sticking point, I see many parents agree to assume all the responsibilities with some vague language regarding expenses of the children.   Unless you are explicit regarding which expenses are to be covered, how they are to be repaid once advanced, who will decide on the expenses, and what happens in the event of a disagreement, you shouldn’t even begin to agree to this.   This kind of arrangement is going to be fraught with difficulty in both getting payment and in tracking in order to seek reimbursement later from the Court.  You are going to end up resentful and probably the one paying all the expenses for the children.  It is really worth it to fight for support if you are the one caring for the children.
  2. Agreeing to far more in support or spousal support than you would be paying had you gone to Court. If you are the party whose generous nature is paving the way for the uncontested you are more than likely going to regret this.   At the moment you can’t see how the future may unfold with expenses of your own, job changes, new partners.  You can see getting out of this marriage as quickly as you can.   You also can’t imagine how you will feel when you are paying far more than you should be in support and your ex-spouse has a new husband or wife.
  3. Agreeing to let one party stay in the house with a provision that they will refinance the house when they can.   What this means if you are on the mortgage is that your credit will be affected until the house is refinanced.  If you don’t have specific language as to the refinance and what happens if it is not refinanced then the Court can’t help you.  I’ve seen people bearing the bad credit of their ex-spouse years later because they wanted to get it over with at the time.
  4. Agreeing to give one party custody when you know the parent has some underlying problem. Too many times I see someone shortly after their divorce is entered who wants to go back to court and fight for custody.   I’m always perplexed as to why they agreed to the custody award in the first place. Do you really want to take a chance on your children’s welfare just to save some time and money on the front end?
  5. Agreeing to take all the debt. Sure, it seems easy enough when you are dissolving the marriage. You can pay for the car, the credit cards, the loans, and still afford all of your expenses.  Probably not.   Again, it’s hard to see into the future and know what will befall you.  But if you agree to take on all the marital expenses once you get out on your own you may see it’s almost impossible to manage.   You may not be able to afford it but you agreed to it and now the Court will not be able to relieve you of the agreement.

My best advice to you is to realize a good agreement for you doesn’t always happen quickly.  It may cost you more time, aggravation, and legal fees in the beginning than you want.  However, it can be impossible to modify some of the provisions you agree on.  Property divisions are often non-modifiable.  Don’t sign any document put in front of you to avoid fighting.  Make sure you know your rights and know what the possible outcomes may be if you were to go to Court.    If you can come up with a fair agreement make sure you look at the implications in the future rather than just looking at the immediate gratification of being free of your marriage now. Contact our firm at (256) 551-0500 to schedule a consultation or fill out our online form.

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