A divorce is uncontested when all the outstanding issues in the divorce have been resolved. The issues are resolved when the parties negotiate and sign a separation agreement. Does that sound simple? Well, that’s because, in most cases, it really is!
In an uncontested divorce, for the most part, you stay out of court. There are a number of different ways you can get a separation agreement in place (for example, you could hire an attorney to negotiate your agreement, you could handle things collaboratively, you could go to mediation, or you could even negotiate it yourself without hiring an attorney), but the end result is that you have a signed legal contract between the two of you that divides everything to your mutual satisfaction.
Of course, that doesn’t mean you’ll get everything that you want. It’s very, very rare that anyone feels like they got everything they wanted to get. There’s a lot of compromise involved and that can be difficult, but if, at the end of the day, you divided most of your assets between the two of you, rather than liquidating them to pay your attorney’s fees, you’ve done yourself a favor.
What happens if I have to go to court?
If you and your husband can’t reach an agreement about how everything is going to be divided, your divorce is contested (rather than uncontested), and you’ll have to go to court and let a judge decide for you. In most cases, this really isn’t ideal for a number of reasons.
The court’s docket is backed up.
You can’t just decide that you want to go to trial and having it the following week. It depends on your specific jurisdiction, but most courts are backed up and it’s difficult to get a trial date that’s less than 3-4 months away. In some courts, it can take even longer. It’s annoying, but not shocking, when you can’t get a place on the docket for 8-9 months, or even a full year.
In the mean time, you’ll just be hanging out in limbo. Your attorney will probably keep trying to negotiate on your behalf, or even schedule settlement conferences, but if you can’t agree, there’s nothing your attorney can do to make things move more quickly.
You’ll have to follow the court’s established procedural steps before you can go to trial.
The court likes it when private people settle their disputes themselves, so it does everything it can to promote settlement before trial. Depending on which court you’re in, different procedural steps can be required, like mediation and settlement conferences. You have to do these things in an attempt to settle, even if there’s no possibility of settlement. It’s required.
It costs money to go to court.
As you can probably imagine, it costs money to fight your divorce out in court. Your attorney will spend time preparing exhibits, developing opening and closing arguments, attending the required settlement conferences and mediation sessions (and preparing for them ahead of time), preparing witnesses and experts to testify at trial, and more. To put on a well thought out case, it takes time and costs you money.
So you’re saying I should avoid court, right?
Yes! Absolutely! A divorce is different from a personal injury case, where the plaintiff stands to win millions and millions of dollars. There’s money to be made in the courtroom in those types of cases, but it doesn’t work that way in divorce. In a divorce, you have the money that you had prior to separation, only now you’ll have to divide it between the two of you. You’ll also have to pay more money to cover your expenses, because you and your husband will need separate places to live, plus separate utilities and other expenses that used to be shared between the two of you. It costs money to go to court, and you’ve got less money than you had before.
If you want the best, freshest new start possible, you’ll want to start thinking now about what you want things to look like on the day your final divorce decree is entered by the judge. Would you rather have more money, or less? More of your belongings, or fewer? Angry, hurt children, or happy, well-adjusted children? The choice, in a lot of ways, is yours. You’ll have to contend with your significant other, too, which can be a real pain—but a lot of the time, you have more control than you realize in how everything is going to go down. I’m not saying that you should give in to temper tantrums or bad behavior or demands that you give up something that is your marital share. I’m just saying that if you approach negotiations with maturity and an eye towards compromise. It’s difficult, but it’s definitely in your best interests to keep your eye on the prize—and the prize is that signed separation agreement.
If I want to negotiate a separation agreement, how should I get started?
As I mentioned before, there are a number of different ways to get a separation agreement, you just have to pick which one works best for you and work from there. Still, before you even pick a method, you should lay the groundwork with your husband. Stress to him the importance of cooperating for the sake of your divorce and coming to an amicable solution. Encourage him to share his information with you, and be forthcoming with him when it comes to yours. You’ll appreciate later on if you can foster an open door policy, because getting documents from an uncooperative opposing side can be difficult, if not impossible.
Remember, too, that if you share children in common, everything you’re doing now will lay the groundwork for how you’re going to coparent later on, and that’s pretty critically important.
Don’t think that this means that I think that, just because you’re mature and handle the situation gracefully, he automatically will, too. I’m simply saying that, if you start things out on the right foot, there is a greater likelihood of him following suit than otherwise.
After you lay the groundwork, you’ll want to start thinking about how to accomplish your goals. Do you want to hire an attorney? Try the collaborative divorce process? See a mediator? Negotiate your agreement yourself? There are lots of options to consider, and you should carefully weigh your options and pick a method that takes your biggest priorities into account.
I think it goes without saying that, depending on the choices you make with respect to your divorce, your costs can vary dramatically. A litigated divorce costs more than an uncontested divorce, and even among uncontested divorces there is still a degree of variability. In most cases, it costs more to hire an attorney than to do it on your own, and more to hire a collaboratively trained attorney than to hire an attorney to simply negotiate on your behalf.
The more contentious your relationship with your soon-to-be ex-husband is, the more likely that costs will be driven up, too, so be sure to keep in mind that all of these things have an impact (and, sometimes, a very dramatic impact) on how much your divorce will cost you, how much you can afford to pay, and how much you’ll need left to start over after your final divorce decree is entered.
Level of Assistance
You should also ask yourself how much help you think you’ll need. Is your divorce complicated? Are you willing to do some of the research on your own? Do you feel savvy enough, in short, to be confident negotiating and gathering information on your own, or with minimal help from others? Or would you prefer to be guided through the entire process?
Depending on the choices you make, you may have more or less opportunities for customization. A separation agreement is much more customizable than a litigated divorce, because, ultimately, you and your husband have to reach an agreement in order to move forward. There’s really no limit to the number of ways you can do things to suit the two of you, so it’s definitely a good idea to keep an open mind.
If you work with an attorney, be sure to work together with him (or her) on your specific plans. If you want things written a certain way, you’ll have to tell your attorney. We definitely aren’t mind readers!
If you’re drafting your agreement yourself, you’ll definitely have the flexibility to customize your agreement and be creative.
What’s the best choice for me?
Ultimately, the best choice for you is one that takes into account the factors that are most important to you. I listed three of the factors I hear most often (level of assistance, price, and level of customizability), but your list may look different depending on the issues you’re experiencing. It’s always a good idea to get as much information as you can beforehand, so that you have the opportunity to think of everything.
We offer free three free books, “What Every Virginia Woman Should Know About Divorce,” “What Every Virginia Military Wife Should Know About Divorce,” and the “Women’s Custody Survival Guide.” All three can be quickly and easily requested online by clicking the name of the book you’d like to receive, and we’ll immediately send you an electronic copy. If you live in our immediate area, we’ll also send you a hard cover copy in a plain white envelope.
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What are the disadvantages of negotiating a separation agreement?
The biggest drawback to negotiating a separation agreement is that there are really no guarantees. You can’t force your husband to sign (and he can’t force you to sign, either), so it is possible that you could spend a ton of time negotiating back and forth only to find that the two of you can’t agree. If you can’t agree, you have two options.
First, you can file for a contested divorce, go to court, and let a judge determine how everything is going to be divided. Otherwise, your only other option is to sign an agreement with respect to the things you CAN agree on, and go to court to let the judge resolve the rest.
I know, I know. It sounds like no solution at all. You wanted to keep things amicable, and all I’m telling you is that you’ll have to go to court. But that’s the risk in relying on a separation agreement to resolve things. It’s the cheapest and easiest way to get divorced, but there’s also nothing that can be done if your partner decides he doesn’t want to sign an agreement.
Does it happen often that people negotiate an agreement and then one side refuses to sign?
No, it doesn’t. Most of the time, a number of drafts go back and forth between both sides before an agreement is reached, but an agreement is still reached. It’s a possibility, though, and you should be aware of it in order to make the best decisions possible for yourself and your future.
Today, most divorces are ultimately resolved with a separation agreement. Even divorces that seem like they will be contested usually end up being uncontested, mostly because the parties just don’t have the money to continue to fight everything out in court. Usually, one or two court appearances is enough to convince both sides that negotiation really is best for everyone involved.
In almost every case, a separation agreement is the best option because it allows the parties to make choices together about what is best. It allows the parties to save money, keep their shared priorities in perspective (like their children!), and prepare for the best, freshest new start possible. For more information about divorce in Virginia or to get help from one of our experienced divorce and custody attorneys, give our office a call at (757) 425-5200.