Going through a divorce can be one of the most difficult experiences in anyone’s life, but one thing that can make it slightly better is if the proceedings are uncontested—that is, both parties agree on all major issues from child custody, support, and visitation to asset, debt, and liability distribution.
An uncontested divorce not only often costs less than a contested one, but it also usually goes through the legal system faster, which means the parties can start on the journey of emotional, psychological, and financial healing more quickly.
But sometimes the parties have an issue they just can’t seem to agree upon and a seemingly simple divorce becomes contested. If this happens, a party to a divorce has a few options:
Some states have programs that offer advice to divorcing couples not represented by attorneys free of charge. California, for example, has a family law facilitator in each county who provides general information on divorce as well as help filling out forms and negotiating agreements.
In a divorce mediation, spouses sit down with an impartial, independent third party with the goal of reaching an agreement regarding all of the issues involved in a divorce. The mediator’s role is to guide the parties toward a middle ground, avoid conflict as much as possible, and emerge with a workable solution that is fair to both parties. The recommendations of a mediator aren’t binding on the parties unless specifically stated otherwise in an agreement between the parties.
Private mediation companies offer this service for a fee; parties can either contact such mediators directly or file a petition with the court to order such a mediation session. As divorcing couples generally aren’t interested in wasting time or money, two of the most important factors to consider in mediators are how many couples they’ve worked with and how many have reached settlements through them.
Hiring a divorce attorney is an option (although often an expensive one) throughout the process, but it is highly recommended if and when the previous two options have been already been explored. To be sure that both party’s interests are represented, one attorney cannot represent both parties in a divorce action.
Some factors to consider when hiring a divorce attorney include his or her knowledge, experience, and track record with clients. Above all, a client should feel comfortable and trust his or her divorce lawyer as the attorney will be learning about the most personal aspects of the client’s life.
Once the attorney files a divorce petition with the court, the other spouse is given the opportunity to respond. The parties then proceed to discovery—the process through which pertinent facts and information are gathered and delivered to the opposing party. The divorcing couple may reach a settlement agreement and/or pursue mediation at any time during the proceedings, but if no agreement is reached, the case will go to trial—to be decided by a judge.
Unless the divorce is uncontested, once a divorce enters the court system, it is an adversarial process, meaning that two sides are essentially in combat as opposed to the negotiating atmosphere of mediation. Once trial (adversarial) litigation begins, the process to resolution is often lengthy, contentious and costly. Accordingly, the parties should be absolutely sure they’d rather fight the issues out in court before proceeding down that road.
In an ideal world, an uncontested divorce would suffice for couples wishing to end things. But the reality is, emotions come into play, and an amicable split is easier said than done. When push comes to shove and a contested divorce is the only alternative, it is important to have a sense of what to expect and what your options are.