I often receive calls from new clients looking to schedule a mediation session. However, during the course of the conversation, I discover that the parties have already reached an agreement on the terms of their divorce. In this situation, there is no need to “mediate” since the Parties are already in agreement. The Parties can avoid the mediation process and hire me to draft the paperwork necessary to file an uncontested divorce.
In order to proceed with an uncontested divorce, a couple must agree on ALL of the issues, including child-related issues, property division, health insurance coverage, alimony, etc. If there is any one issue that a couple cannot agree upon, then they will need to engage in some level of mediation to try to resolve the issue in dispute. Assuming, however, that all issues are agreed upon, I will draft a Separation Agreement, their “contract” moving forward. In my opinion, the Separation Agreement is the most important document in the divorce process because it dictates the terms of the parties’ divorce and determines how the parties will handle certain situations in the future. The Agreement needs to not only address all current issues, but also needs to anticipate future issues and identify how those issues will be resolved.
In addition to the Separation Agreement, there are other forms that the Court requires a couple to file. One important document is the Joint Petition. This form is signed and submitted by both parties, as opposed to one party filing for divorce against the other. Effectively, the parties are representing to the Court that they are moving forward together, in agreement, in the divorce process. The Joint Petition cites “an irretrievable breakdown in the marriage with no hope of reconciliation” as the basis for the divorce. There is no “fault” attributed to either party. Instead, the Parties are representing to the Court that their marriage has broken down, through no fault of either party, and that there is no hope that the marriage can be salvaged. Additionally, the Parties will sign and submit an “Affidavit of Irretrievable Breakdown of Marriage”, which reiterates the representation in the Joint Petition that the marriage has broken down and there is no hope of reconciliation.
There are numerous benefits to filing an uncontested divorce. They are quicker, less expensive and less stressful than a contested divorce. The uncontested divorce process involves filing a packet of paperwork with the Court (Joint Petition, Separation Agreement, Affidavit of Irretrievable Breakdown of Marriage and miscellaneous statistical forms). The Court processes the paperwork and assigns an “uncontested hearing” date. Some courts will allow parties to appear remotely at the uncontested hearing. Other courts require an in person hearing. Either way, the actual hearing lasts approximately 5 to 10 minutes. At the hearing, the Judge reviews the parties’ Separation Agreement to ensure that its terms are fair and that the parties have addressed all of the necessary issues to be considered when divorcing. The Judge will typically ask the parties a series of questions:
“Have you reviewed the Separation Agreement?” “Do you understand its terms?” “Do you find the Separation Agreement to be fair and reasonable?” “Did you sign it voluntarily?” “Do you believe the terms of the Separation Agreement to be fair and reasonable?” “Did you review your spouse’s financial statement and do you believe your spouse has accurately disclosed his/her assets?” Assuming the answers to the questions are in the affirmative, and that the Court finds the Separation Agreement to be fair and reasonable, it will accept the Agreement and enter a “judgment of divorce nisi.” This signifies that the Court has accepted the divorce, however, the divorce is not “final” until 120 days later.
Since the uncontested divorce process is more streamlined and the parties are able to represent themselves at the uncontested hearing, the legal fees are limited to the drafting of the paperwork. I charge a flat fee to prepare the necessary paperwork, including the Separation Agreement. As a result, the client knows up front exactly what the cost of their divorce will be.
Finally, an uncontested divorce is less stressful given the predictable nature of the process, the agreement as to the terms and the expediency with which an uncontested divorce is processed. If you are interested in pursuing an uncontested divorce, or have questions on how the process works, please feel free to reach out to my office to schedule a free, initial consultation.