When married couples decide to split up, they have two basic choices: contested or uncontested divorce.
What's the difference?
In a contested divorce, the parties fight over who gets what in court. In an uncontested divorce, the parties agree on everything, live separately for the required time period, and ask the court to approve the divorce.
Which is the better option?
Everyone who can should get an uncontested divorce - the process takes less time and money when everyone agrees and there is no need for investigators, witnesses, and extensive research.
But, not everyone has the option of an uncontested divorce - it is normal for spouses going through a separation or divorce to disagree, sometimes unreasonably, about critical, emotional issues like child custody, alimony, child support, or division of assets.
Should My Spouse and I Consider an Uncontested Divorce?
Here are three situations when an uncontested divorce will work for you:
- There's nothing to dispute. This is the simplest, most common type of uncontested divorce - there is nothing to fight over because the couple has no children to consider and no assets to divide, and neither party wants alimony.
- The parties agree on how to resolve all contested issues. This happens when a couple negotiates on their own or with the help of attorneys how to divide property and debt, who gets the children or how custody will be shared, and whether one party gets alimony. In these situations, couples often reach their agreement as part of an order of separate support and maintenance, stick with the agreement while living separately for a year, and then get their divorce finalized.
- One party doesn't respond to a summons or a complaint for divorce. Basically, this means that you can still get divorced even if your spouse doesn't want to participate in the process.
The process obviously works best for people who are self-supporting, don't have young children, and identify few of their belongings as marital assets - in other words, many couples who succeed at an uncontested divorce haven't been married for very long.
But, that doesn't mean that couples who have been married for longer, have children, or have a lot of marital assets can't get an uncontested divorce, as long as they can come to an agreement that the court will approve.
Is Your Divorce Really Uncontested?
An uncontested divorce can only save you money if it's actually uncontested.
During the hearing to approve the divorce agreement, the court is not going to just take your word that it's uncontested. If it becomes clear that there are contested issues that haven't been resolved, the court will reject the uncontested divorce. Then you may be starting over...
On the other hand, once you get into the divorce process and your attorney discovers that everything is not agreed upon, any litigation that arises from those disagreements will end up costing you more money than you had planned on spending.
Before you announce that you are seeking an uncontested divorce, be sure that it is actually uncontested.
Do I Need an Attorney for An Uncontested Divorce?
Even if you and your spouse have agreed to go the uncontested route, you should still recruit a divorce attorney to protect your interests and legal rights.
You may be filled with goodwill and tempted to trust your spouse completely ... but don't do it. Let us be skeptical for you - we will research and investigate to make sure that all assets and debts have been disclosed. You don't want to learn later that you agreed to give up marital property you didn't know about or take on debts you weren't aware of.
In a truly uncontested divorce, your attorney's job is not to pick fights with your soon-to-be-ex-spouse - your attorney's job, in part, is to make sure that you are not being taken advantage of or lied to...
Your attorney will also help make sure all the necessary paperwork is completed and submitted to the court properly, so the proceedings are not delayed.
Your divorce lawyer on the Axelrod team brings valuable experience to the table - hopefully, this is your first time dealing with the complicated process of a divorce, but we've done it many times. We know what kinds of issues are likely to come up and how to deal with them, so the proceedings don't get derailed or delayed.
Do We Need A Separation Agreement?
One of the first things we can help with is a separation agreement. This can help you resolve contested issues outside of court and stay on track for a final, uncontested divorce.
In South Carolina, there is no such thing as a "legal separation" - the law says you are either married, or you are divorced. But, you can't get a no-fault divorce without first living separately for a year.
If the two of you decide you want to separate, your divorce attorneys can help you negotiate a separate support and maintenance agreement. This can be especially important if there are contested issues - reaching an agreement on these kinds of issues before you get to court can keep alive your chances of getting an uncontested divorce, and, in many cases, the Court can simply incorporate the terms of your separation agreement into the final divorce decree.
A separation agreement can resolve issues such as:
- How will real estate and other property be divided;
- Who will run any jointly owned business, and how the profits will be divided;
- Which spouse gets custody of the children;
- What kind of visitation rights the other parent will get;
- Whether either party will make child support payments; and
- Whether either party will make alimony payments.
What Are the Grounds for An Uncontested Divorce?
Usually, an uncontested divorce is filed on the grounds of the couple having lived separately for more than one year.
It's a no-fault divorce, meaning you are not claiming that your spouse was physically abusive, a habitual drunk, or unfaithful. You simply live separately for more than a year, and then ask the Court to approve the terms of your divorce.
Whether you anticipate an uncontested divorce or a knock-down, drag-out fight with a bitter spouse, your Myrtle Beach divorce lawyer on the Axelrod team can help you to get where you need to be while protecting your interests.