Georgia Divorce: Is My Case "Uncontested?"
Jarrett & Price LLC
One of the first questions posed by many potential divorce clients is, “can I hire you to do an uncontested divorce?” My response is always, "that depends on you and your spouse."
Whether a Georgia divorce can be handled as an uncontested case relies solely on the behavior and goals of the parties, not on the actions of the attorney.
An uncontested divorce is essentially a legal action to end a marriage where the spouses agree on every relevant issues of the marriage at, or near, the beginning of the case. That means all relevant issues, from property division, to alimony, custody and visitation, child support, retirement, vehicles and taxes. If there's not an agreement on even one issue, there is no uncontested divorce.
The typical case begins with one spouse filing a complaint for divorce, or notifying the client they intend to file it, and the parties sign an agreement that resolves all the issues in the divorce. Once the agreement is signed, the parties notify they court of the divorce and the terms, and a Superior Court judge issues an order incorporating the agreement that finalizes the divorce. In some courts one of the parties must be present for a very brief hearing to request the judge to sign the order, other courts may not require a hearing at all. The essence of an uncontested divorce is that the Court takes very little role in the case other than signing off on the order, as the parties have already resolved all the issues in a binding written agreement without any real litigation.
Uncontested cases are most appropriate where the parties have amicably separated, there is very little marital property to divide, and if there are children, the parties agree on all custody issues and child support. If that is the case, an uncontested divorce can save both parties thousands of dollars on attorney’s fees and expenses, and significantly shorten the time period to finalize the divorce. By its very nature, the more issues there are to decide in the case, the less likely the parties are going to be in agreement on every single issue at or near the outset of the case.
There are also some perils to attempting an uncontested case. Usually, only one spouse is represented by counsel and that attorney has no duty to act in the other spouse’s best interest. If one spouse is secretive about their finances or is suspected of cheating, it may not be wise for the other spouse to waive their rights to file an answer and conduct discovery. If one spouse feels they are being treated unfairly by the settlement proposal, obviously it may not be in their best interest to sign away their rights simply in the interest of finalizing the divorce.
Finally, both spouses must agree. That is often difficult given the emotions involved when ending a marriage. As badly as one party wants to end the marriage without a fight, it’s not possible if the other party is not in agreement. All it takes is one disagreement over one issue in the divorce to turn an uncontested case into a contested one. Speaking from experience, some of the most contested cases I've ever been involved in ironically started out with a client hiring our firm for an "uncontested" divorce.
It’s also important to remember that the vast majority of contested divorce cases eventually end by a settlement agreement of the parties as well. You don’t have to start the case "uncontested" in order to eventually resolve all issues without the involvement of the courts. Most courts want the parties to work the issues out themselves, and are given ample time to work toward a settlement through discussions or mediations. In some counties, like Chatham, it is actually required to mediate the case prior to a Judge holding a final hearing on the issues. An uncontested case is simply a fast-track approach to the settlement that is appropriate in some circumstances.
Here are some scenarios where an uncontested divorce may be appropriate:
If your marriage is ending and some of these factors are present, you may be capable of achieving the goals in your case as an uncontested divorce. Contact an attorney at Jarrett & Price to arrange for a consultation so we can learn more about the specifics of your case, and whether you and your spouse are good candidates for an uncontested divorce.
Whether a Georgia divorce can be handled as an uncontested case relies solely on the behavior and goals of the parties, not on the actions of the attorney.
An uncontested divorce is essentially a legal action to end a marriage where the spouses agree on every relevant issues of the marriage at, or near, the beginning of the case. That means all relevant issues, from property division, to alimony, custody and visitation, child support, retirement, vehicles and taxes. If there's not an agreement on even one issue, there is no uncontested divorce.
The typical case begins with one spouse filing a complaint for divorce, or notifying the client they intend to file it, and the parties sign an agreement that resolves all the issues in the divorce. Once the agreement is signed, the parties notify they court of the divorce and the terms, and a Superior Court judge issues an order incorporating the agreement that finalizes the divorce. In some courts one of the parties must be present for a very brief hearing to request the judge to sign the order, other courts may not require a hearing at all. The essence of an uncontested divorce is that the Court takes very little role in the case other than signing off on the order, as the parties have already resolved all the issues in a binding written agreement without any real litigation.
Uncontested cases are most appropriate where the parties have amicably separated, there is very little marital property to divide, and if there are children, the parties agree on all custody issues and child support. If that is the case, an uncontested divorce can save both parties thousands of dollars on attorney’s fees and expenses, and significantly shorten the time period to finalize the divorce. By its very nature, the more issues there are to decide in the case, the less likely the parties are going to be in agreement on every single issue at or near the outset of the case.
There are also some perils to attempting an uncontested case. Usually, only one spouse is represented by counsel and that attorney has no duty to act in the other spouse’s best interest. If one spouse is secretive about their finances or is suspected of cheating, it may not be wise for the other spouse to waive their rights to file an answer and conduct discovery. If one spouse feels they are being treated unfairly by the settlement proposal, obviously it may not be in their best interest to sign away their rights simply in the interest of finalizing the divorce.
Finally, both spouses must agree. That is often difficult given the emotions involved when ending a marriage. As badly as one party wants to end the marriage without a fight, it’s not possible if the other party is not in agreement. All it takes is one disagreement over one issue in the divorce to turn an uncontested case into a contested one. Speaking from experience, some of the most contested cases I've ever been involved in ironically started out with a client hiring our firm for an "uncontested" divorce.
It’s also important to remember that the vast majority of contested divorce cases eventually end by a settlement agreement of the parties as well. You don’t have to start the case "uncontested" in order to eventually resolve all issues without the involvement of the courts. Most courts want the parties to work the issues out themselves, and are given ample time to work toward a settlement through discussions or mediations. In some counties, like Chatham, it is actually required to mediate the case prior to a Judge holding a final hearing on the issues. An uncontested case is simply a fast-track approach to the settlement that is appropriate in some circumstances.
Here are some scenarios where an uncontested divorce may be appropriate:
- You and your spouse have separated on good terms and are able to discuss difficult questions about ending your marriage civilly and amicably;
- There are no children of the marriage and therefore no custody issues to disagree about. This is not a requirement, but a divorce without children is more likely to be uncontested;
- If there are children, you agree as to who shall have primary custody, what the other parent's visitation rights will be, and the amount of child support that is being set per Georgia's child support guidelines.
- There is a limited amount of marital property, and no real property. If there is real property, you agree as to who keeps the house or how the house should be sold and the proceeds divided;
- There is limited marital debt and/or you agree about how those debts should be divided;
- Each spouse has a thorough understanding of the marital finances, how much money is earned by the other spouse and how it is spent and saved;
- The marriage was brief. This is not a requirement, but marriages ending after several years typically have more complicated issues that make them more likely to be contested.
- There has been a long period of separation between the spouses and both are ready to move on.
If your marriage is ending and some of these factors are present, you may be capable of achieving the goals in your case as an uncontested divorce. Contact an attorney at Jarrett & Price to arrange for a consultation so we can learn more about the specifics of your case, and whether you and your spouse are good candidates for an uncontested divorce.
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