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Divorce Truths - Contested or Uncontested
THE COST OF LEGAL REPRESENTATION
Uncontested means no contest. It's just over. No fight. No controversy. No dispute. The judge doesn't decide anything. You and your spouse and/or attorneys negotiate the outcome of the issues. Less stress, less time, less money. You can move on with your life.
Just agreeing to get the divorce itself isn't enough. You both have to agree on how the assets, debts, house, furniture, and everything else are to be divided. Who gets what? Who pays what? Have you decided custody, visitation and support? Your attorney will consider all issues. An experienced attorney knows how to avoid future problems in the drafting of the documents. The cost of legal representation will depend upon the size of your marital estate. Asset-rich couples require more time and document preparation than low-asset couples, even though both are uncontested. You are paying for their time.
Often times, even in an uncontested divorce, it may be difficult to predict the length of time it will take to complete the process. The time your attorney spends sorting out assets, drafting documents and exchanging agreements contribute to the cost of an uncontested divorce. Even after a divorce is finalized, preparation of documents to transfer property or retirement accounts may be required.
However, if your divorce is uncontested and you do not have many assets and you have complete knowledge of your finances, you may be charged a flat amount. In an uncontested divorce you are in control of the outcome. There are no surprises. The main obstacle is that it requires the cooperation of your spouse. This may be an impossible obstacle.
UNCONTESTED ON SOME ISSUES, CONTESTED ON OTHERS
Often times the line between contested and uncontested blurs. Some couples can agree on some issues but not all. One spouse may be willing to allow the other to keep the house, but wants more equity out of the house than the other is willing to give them. Spouses may agree on custody but not the amount of child support. One party may want alimony but their spouse may not be willing to voluntarily pay any.
Where disputed issues remain, the unresolved questions will be submitted to the judge for determination. Even though most of the issues are resolved, a lot of preparation is required by your attorney to present remaining issues in a trial.
HAVE WE RESOLVED EVERYTHING?
You should make a comprehensive list of all your assets and debts. If you have any doubts as to whether there are more, tell your attorney. If you are sure you have listed everything, then your attorney can prepare a proposed distribution and submit it to your spouse or their attorney for their response.
KNOWLEDGE OF MARITAL FINANCES- DON'T WAKE UP BROKE
An uncontested divorce requires full knowledge of martial finances. If you have not been the spouse who has managed the finances, you are at a disadvantage. Your attorney can compel your spouse to produce all necessary financial records. They may also obtain some documents directly from the institutions, although institutions outside the jurisdiction or authority of the court present unique problems.
If there are still unanswered or undisclosed financial questions that you cannot obtain, your attorney can take your spouse's deposition. This is a formal proceeding under oath recorded and typed by a court reporter. Your attorney will ask your spouse questions to assist in identifying accounts, amounts, retirement benefits, and anything else relevant prior to making final decisions. In deciding whether to spend the extra money to obtain this information through deposition, your attorney will balance the benefit to you. Depositions are unusual in uncontested divorces. This may be considered if there are large assets yet undetermined that you cannot obtain knowledge of any other way. Even though you may not know the specifics of accounts, you are probably aware of their existence. Don't put your head in the sand. If you don't know about your finances, tell your attorney. You need to know about all assets. If you want to walk away with nothing, that's your decision, but you need to know what you are leaving behind.
Your attorney will include a provision in your agreement that specifies it is based on full financial disclosure. Agreements may be set aside later if assets are not disclosed, or a party deliberately withholds information or gives false information. At a minimum, your attorney may request your spouse to produce sworn financial affidavits of assets and liabilities.
DOES MY SPOUSE NEED AN ATTORNEY?
No attorney can represent both parties. Your spouse should obtain their own attorney to review documents, and advise them of their rights. If your marital estate has little or no assets or debts, your spouse may waive that right in writing. It is not unusual for them to sign an agreement prepared by your attorney without benefit of counsel. If your marital estate is complex, usually your spouse will hire an attorney who may have input into the agreement. That, however, is their choice and not yours. Don't try to talk them out of it. If problems arise later, they may contend your influence deceived them.
THE UNCONTESTED HEARING
Some courts may require the party/plaintiff who files the divorce to attend a hearing to formally dissolve your marriage. Although some courts may allow your attorney to present documents to finalize the divorce without requiring your attendance. Some spouses feel they must attend the final hearing, even if it is not necessary. If your spouse requests to do so, they may.
If you are required by the judge to attend court to end your marriage, this is only a formality where your attorney will ask you questions under oath. Procedures in the individual jurisdictions vary. The judge may have additional questions, although they usually don't. Your attorney will advise you of the required procedure. The Final Decree of Divorce document has been prepared either by the court personnel but usually by your attorney, and the judge will sign it. It will incorporate the agreement you and your spouse have previously agreed to. You and your spouse will be ordered to abide by its terms. The wife may restore her maiden name or a prior married name. The process is complete. You are now free to start your single life.
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