Most people have known someone who has been through a “nasty divorce”. It may seem like there is no other kind of divorce, but there is. An agreed, uncontested divorce can be accomplished in the right circumstances, with the right parties and the right attorney or attorneys. If you or someone you know is facing the prospect of a divorce, consider the benefit of an agreement for divorce and what is necessary to accomplish it.
The goal of the “agreed, uncontested divorce” is reach agreement efficiently without a protracted period of discovery and multiple court appearances, reduce it to writing and get it approved by the court in just a few months. Many (actually most) divorces are ended by agreement (without a trial), but there is usually a lot of disagreement along the way. An agreed, uncontested divorce begins with agreement on the basic terms, goes quickly and amicably right to an agreement for uncontested divorce that is presented to and approved by the court without discovery, multiple court appearances and a lot of expense.
An agreed, uncontested divorce can take just a few months rather than many, many months or even years!
Parties who are able to accomplish an agreed, uncontested divorce spend far less time and money in the process and move on more quickly with their lives. The benefits of an agreed, uncontested divorce are obvious, but three key components must be in place for those benefits to be realized.
The first and most important ingredient is the willingness of both parties to be open, reasonable, objective and to put differences aside. This is often easier said than done. Emotions run high when a marital relationship runs aground; but couples who can be “philosophical” about the failed relationship, put emotions aside and focus on what must be done to move on can be successful in achieving an agreed, uncontested divorce.
Distrust can be a major obstacle to an agreed, uncontested divorce. Both spouses must be open and honest and share all financial and other information with each other to accomplish the goal of an agreed, uncontested divorce.
The second key element is the attorney (or attorneys) involved. Both parties and the attorney or attorneys must work together to pull off an agreed, uncontested divorce. Choosing the right attorney or attorneys is important. Attorneys are trained to be zealous advocates. Some attorneys are not good at letting go of the litigator (zealous advocate) mindset to be a collaborator. Choose an attorney who is open to, if not welcoming of, the agreed, uncontested divorce.
Spouses can agree to use one attorney. This will keep costs down, but understand that attorneys can ethically only represent one or the other of the spouses. Attorneys are bound by the rules that govern us to notify the other party (spouse in this case) of that fact. The notice must be in writing. The notice must inform the other spouse of his/her right and to independent legal counsel, and the other spouse must acknowledge that notice and waive his/her right to independent counsel in writing.
The right circumstances are the last component of an agreed, uncontested divorce. While this is not a hard and fast rule, the simpler and fewer the issues are, the more likely an agreed, uncontested divorce can be achieved. Sometimes, the circumstances are not amenable to an agreed, uncontested divorce. Long term marriages, child custody and visitation issues, and the need for spousal maintenance are some circumstances that tend to prolong the process. Other factors like many or complex marital assets (like business interests, pensions and qualified plans) or large marital debt can be an obstacle. Finally, complicating issues like infidelity, abuse, addiction and a myriad of similar things often prove difficult to deal with on an agreed, uncontested basis.
The longer the marriage is, the more complex the issues are, the greater the emotional toll has been during the marriage, the less likely an agreed, uncontested divorce can be accomplished. That is not to say that the divorce cannot be accomplished efficiently by agreement in these circumstances; but more time and attention will be needed to finalize the divorce, including some discovery and multiple court appearances to work through the issues.
If the circumstances are right and both parties are willing, and if the attorney(s) are responsive, an agreed, uncontested divorce can be accomplished in a few months. The parties should have some basic agreement about how assets and property are to be divided when the process starts. The attorney will instruct the parties what other issues must be addressed. Keep in mind that the issues to be addressed are stated in the state Marriage and Dissolution of Marriage Act. Those additional issues often derail an agreed, uncontested divorce, so going in to the process and continuing through the process with a willingness to compromise and settle is important.
Once all of the required bases are addressed, the attorney will prepare a written “marital settlement agreement” that must be signed by both parties. Once that marital settlement agreement is signed, a “prove-up date” will be obtained to present the marital settlement agreement to a judge. This is done orally by both parties under oath. The attorney will orchestrate the “prove-up”. When the prove-up is completed covering all of the things that must be addressed, the judge approves it and the court fees are paid, a Certificate of Dissolution of Marriage will be issued; and the divorce is final.
An agreed, uncontested divorce can save many months, and even years, of protracted litigation. It can save thousands and thousands of dollars in attorneys’ fees and other costs. A long, drawn out divorce prolongs and heightens the emotional pain of the failed relationship, often with little benefit. It can also drain the checking accounts. If the marital relationship is irretrievably broken down, an agreed, uncontested divorce is a faster more efficient, less painful and less expensive way to close that chapter and move on.
The key ingredients to an agreed uncontested divorce are the two spouses, the attorney (or attorneys) and circumstances that are not too complex or emotionally charged to be able reach an agreement amicably and efficiently. Most importantly, the parties must all be willing to collaborate, to work together, to compromise and to have the same goal of avoiding the long way around.
If you want to see if you qualify for an agreed, uncontested divorce for a set, flat fee, contact me directly here. I can let you know in a quick, half hour consultation whether you qualify. If you would rather contact us generally, you can do that here.Mark D. Brent Drendel & Jansons Law Group 111 Flinn Street Batavia, IL 60510 (630) 406-5440 [email protected] also
2000 W. Galena Blvd. Suite 204
Aurora, IL 60506 (630) 897-5957
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