The Post-Divorce-Parenting Glossary

• What is an uncontested divorce?
• What are the differences between an uncontested divorce and a contested divorce?
• What are the typical issues that people will have when pursuing an uncontested divorce?
• What are the benefits of an uncontested divorce?
• What issues must be resolved in an uncontested divorce?
• Can parents of minor children have an uncontested divorce?
• What are some items that divorcing parents should make sure are in a court order?
• What happens if the parties cannot agree on terms of the divorce?

What is an uncontested divorce?

An uncontested divorce is a divorce where both spouses are able to terminate their marriage and are able to arrive at a mutually acceptable agreement about the final divorce settlement, without going to trial.  Thus, in an uncontested divorce, a judge does not decide the terms of the divorce - the divorcing couple negotiates the terms.

What are the differences between an uncontested divorce and a contested divorce?

An uncontested divorce simply means that the divorcing parties are able to work out their differences and come to an agreement on the terms of the divorce, without needing a judge to decide on how the terms will be imposed.  Conversely, in a contested divorce, the terms of divorce are out of the control of the divorcing couple.  A judge will decide the terms that the divorcing party was unable to come to agreement on.

Cost is also a significant difference between contested and uncontested divorces.  In a contested divorce, the parties may be incurring $500 per hour our more in legal fees, combined.  Tens-of-thousands of dollars can easily be spent, only to arrive at a decision that one or both parties is not happy with.  An uncontested divorce may be accomplished for $1000 to $2000.

The speed at which the process is accomplished is yet another vast difference between contested and uncontested divorces.  Uncontested divorces can be completed very quickly, while contested divorces can last for months or years.

If possible, an uncontested divorce is preferable to a contested divorce.

What are the typical issues that people will have when pursuing an uncontested divorce?

The two most common issues that divorcing couples may experience when pursuing an uncontested divorce are:

• A high level of conflict
• An unwillingness to compromise

Uncontested divorces do not mean that the divorcing couple must agree on all the divorce terms; only that they must be willing to negotiate and sacrifice some of the terms they may want for the greater good of the entire divorced family.

When children are involved, the willingness of each parent to compromise can be the difference between happy, well-adjusted children and children that suffer from extremely negative consequences of divorce.  A chance to coparent is much more likely if the divorcing couple can get settle without needing a court to decide the terms of the divorce.
 

What are the benefits of an uncontested divorce?

The majority of the couples who divorce do so via an uncontested divorce.  If a couple decides that a divorce is inevitable, an uncontested divorce has many benefits over a contested divorce.  Some of these benefits are:

• Reduced stress
• Happier children
• Lower cost
• A better post-divorce relationship

Uncontested divorces are also much more private than contested divorces. While agreements reached between the two parties are filed with the court and become public record, the disclosures made to one another do not need to be public.

When children are involved, many people who go through an uncontested divorce acknowledge that the money saved can be used to benefit the children.  Litigation is extremely expensive, and even a shorter conflicts requiring legal assistance from an attorney can quickly wipe out finances that could have otherwise been used to put children through college.

Beyond cost savings, children also benefit greatly from reduced stress between the parents.  Parents who are able to divorce with less stress are great candidates for co-parenting.
 

What issues must be resolved in an uncontested divorce?

Every divorce must address and answer the following questions:

• How will property be divided?
• How will debt be divided?
• How will child custody be allocated?
• How will child support be determined?
• How will spousal support be determined?

Depending on the circumstances of the divorce, these issues might be relatively easy and low-conflict, or they may be difficult and lead to intense conflict.

Can parents of minor children have an uncontested divorce?

Uncontested divorce is possible with or without children, however children do add a significant complication that parents need to consider.  Many issues will need to be determined in an uncontested divorce that involves minor children, but a few basic considerations are:

• How will physical custody be allocated?
• How will legal custody be allocated?
• How much child support will be paid?

There are many other questions that need to be answered regarding child custody, but those are best determined by completing a parenting plan together, which can help both parents consider issues that may arise well in advance.

It is important to know that a court will look at child custody decisions by applying the best interest of the child doctrine.  This may or may not be what the divorcing couple desires.  While in an uncontested, parents have a great deal of control over the situation, the best interest doctrine will still apply.
 

What are some items that divorcing parents should make sure are in a court order?

Parental relocation
If one parent wants to move out-of-state, the court order may or may not allow it.  Children who have parents that live far apart typically suffer more negative effects from divorce than parents that live close and are able to co-parent.  Thus, one of the most important clauses that should be in a court order is addressing relocation.  Putting a phrase that addresses how far parents can move from the other parent without agreeing on the terms of a move can prevent significant problems in the future.

Big issues must be discussed before acting.
If parents can collaborate on big issues before unilaterally acting, conflict can be significantly less.  A court order should address the need for any big decisions that can affect the custody arrangement to be discussed and agreed on before either parent takes any action.

Joint legal custody
Legal custody is the component of child custody that determines who makes decisions about what religion the children will follow, what type of schooling they will receive, what type of medical attention they will receive, and other long-term parental decisions.  Generally, divorcing parents do get joint legal custody.  This means both parents have an equal say in each of these types of decision.

Joint physical custody
If a parent has sole custody of child, they essentially have control.  Giving up control to one parent can lead to issues if the noncustodial parent disagrees with decisions that the custodial parent does.  By having joint physical custody, neither parent is in a more powerful position than the other.  It should be noted that parents can have joint physical custody, but still have unequal time with the children.  For example, parents with hint physical custody could have an 80/20 spilt with their time with the children.

Fair child support
Child support is best determined when it is negotiated, not imposed.  When the divorcing parents are able to mutually come to an agreement about what fair child support is, then there is less likelihood of unpaid child support and less chance of money spent on litigation in the future.  It should be noted that even if parents negotiate fair child support, a family court will still likely need to determine whether it passes state child support guidelines.

What happens if the parties cannot agree on terms of the divorce?

When the court reviews the details of the divorce agreement that has been created, either party may object.  If an objection occurs, the divorce will become a contested divorce.  In a contested divorce, a judge will order the outcome.  This is an important distinction between uncontested divorces and contested divorces; in a contested divorce, a judge ultimate decides what is best - not the divorcing couple.

In benefits both parties to work out the details in an uncontested manner, if at all possible.  In almost every situation, if the case goes to court, it will cost a significant amount of money for both parties, one or both sides will feel unhappy with the decision, and the conflict will not subside.  This last point is especially important for divorcing parents, because in child custody arrangements, conflict between parents often leads to negative side-effects experienced by their children.

Divorcing parents do not end their relationship.  They stop living together, but must still parent together, and therefore they are almost forced find ways to work out differences on their own - an enormous challenge for many divorcing couples who were not able to do that while married.
 

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