Divorce: Contested v. Uncontested

IMG_8717By Justin O’Dell

Starting this month, we are going to switch our discussion of Dick and Jane to the topic of divorce.  This topic has a variety of subtopics and issues and we will spend time each month looking at issues ranging from division of property, alimony, child support, child custody and attorney’s fees.

For this month, the discussion needs to start with an overview of the divorce process.  A divorce is a lawsuit and is similar, in parts, to any other civil proceeding.  A divorce is initiated by filing a Complaint.  The other party files an Answer.  Both parties are able to conduct discovery.  The Courts will hear a interlocutory or temporary hearing and, if necessary, will hear and consider a final hearing.  In Georgia, a party can actually have a jury trial on the issues of division of property and alimony.

When people hear the word divorce and learn that lawyers are involved, visions of the classic film “War of the Roses” with Michael Douglas and Kathleen Turner begin to pop into their minds.  http://www.youtube.com/watch?v=5ebv3i_9Ltc

The reality is that the overwhelming majority of divorce cases are resolved by agreement.  In many instances, the case can be resolved without any legal disagreements at all.  In others, the case may start off in a disagreeable posture, but eventually finds a middle ground.

The divorce process is best divided into two types of divorces:  uncontested and contested.  An uncontested divorce is one in which the case is resolved first and then filed with the Courts.  Sometimes these cases are filed with the assistance of a lawyer and other times not.  Due to increasing levels of complexity related to dividing assets like 401(k) plans and issues related to Court mandated parenting plan forms and child support calculator worksheets, it is difficult and unwise for anyone with children or any level of assets to proceed with a divorce without at least consulting with a lawyer.

In an uncontested divorce, a lawyer cannot represent both the Husband and Wife.  The lawyer can only represent one of the spouses.  The other spouse can consult with a lawyer of his or her choosing or waive that right.  Given that every divorce involves some inherent level of mistrust or lack of communication, it is often helpful for the non-represented spouse to engage the services of a lawyer to at least review and explain the paperwork.

Uncontested divorces can still be contentious, it is just that the arguing takes place outside of the Courtroom and there is no judge to make decisions.  However, in virtually every instance, the parties will find that if they are able to reach the agreement themselves as opposed to having a Judge impose it upon them, the spouses have a much better chance of parting ways amicably.

There are some areas in which an uncontested divorce can be unwise or a poor choice, even if the process is amicable.  Those instances are:

1)      Where one spouse is at an informational disadvantage.  It is unwise for a spouse to simply sign off on a division of assets and debts where he or she has no independent knowledge of the parties’ income, assets and liabilities.  The spouse has no idea whether what is being agreed to is really a “fair deal.”

2)     Where one spouse is at an emotional disadvantage.  This situation can occur in one of several ways.  When a spouse is caught in an adulterous relationship (or perhaps is itching to pursue a new relationship), that spouse may be tempted to sign an agreement out of feelings of guilt.  It is very common for these spouses to sign away far more than ever would have been occasioned in Court.  In a short while, the spouse finds themselves in financial trouble or unable to meet the obligations that they agreed upon.  In many instances, these agreements cannot be undone or modified.  Other emotional disadvantages occur when one spouse has been subjected to emotional, mental or physical abuse.  In these cases, the spouse may sign an agreement which is disadvantageous simply because they have been abused to the point where they do not have the ability or psyche to stand up to their partner any longer.

3)     Where one spouse is at a financial disadvantage.   Sometimes spouses find themselves in a situation wherein the primary wage earner presents a divorce agreement with the statement that the deal is “off the table” if the other spouse seeks to hire a lawyer.  Other times, the spouse will threaten to stop paying for certain expenses if a spouse contests things or disagrees with a proposal.  Once again, these situations lead to unfair and unreasonable divorce agreements.

4)     Where the assets, debts or case is complex.  There are instances wherein the parties get along amicably and really have no desire to fight, however, their earnings structure, asset pool or debt structure are such that each side is going to have to engage a lawyer (and perhaps accountants, business valuation experts and others) to help them fully understand the process and make the best decision for the parties collectively.  The divorce process does allow the parties to move certain assets without penalties and allows for certain tax benefits, if the parties structure the agreement appropriately.  In these cases, it can be financially costly to sign a quick agreement.

Outside of these situations, most cases should be resolved by the parties and attorneys should aid in that process whenever possible.  Some cases must be filed and fought either temporarily or to a bitter end.  A case which is filed without an agreement attached is a contested divorce.  As indicated above, many of these cases are still resolved by an agreement at some point.

Next month, we will look at the process involved with filing a divorce and some of the initial items that Dick and Jane will need to consider in bringing a divorce.  Throughout our divorce discussion, each month will look at the case first from Dick’s perspective and then from Jane’s perspective to try and provide insight into the thought process and legal advice for each.