In prior articles we discussed what and uncontested divorce is and the basics of the uncontested divorce. In those articles we talked about the agreements necessary for an uncontested divorce. Depending on the specifics of your marriage, you will have to agree on:
- Getting divorced
- Property and Debt Division, and
- Child related issues.
Let’s dig a little deeper into the agreements required for an uncontested.
The first thing you have to agree on when getting divorced is actually getting divorced. This seems like a simple thing, but there are situations when one party wants a divorce, but the other doesn’t. If both parties agree, no problem. However, if one party does not agree, the next question is, despite their disagreement, are they going to refuse to participate in the divorce? If the answer to that question is that they are refusing to participate, then you do not have an uncontested divorce. Your case will be contested.
Remember, there are only two ways a divorce can be completed, uncontested (agreed) or contested (go to court).
If your spouse doesn’t want the divorce, but will not hinder the process, then you may still have an uncontested divorce.
Property and Debt Division
They have law school classes about property and debts in divorces. It is a complex subject. For purposes of this article I am going to keep it as simple as possible.
What property and debts do you have to be concerned with? The short answer is all of it. In a divorce case (regardless of whether contested or uncontested) the court assumes that ALL property and debts are a part of the marriage. We call that “community property”. A spouse can offer proof to the court that some or all of the property and debts are “separate property”, but if no proof is given, the court will presume it is all part of the community.
So how do you know what is separate property? Put simply, separate property is any property brought into the marriage, or any property gifted to a spouse or inherited by that spouse. Again, this is very simplistic description and there are a million variations and considerations for whether something is separate or community.
I am not going to get into how to determine what is community property and what is separate property in detail here. Why? Because we are discussing AGREED divorces, meaning you are agreeing on the property division. The point of the above is to illustrate that you need to divide ALL your property in your divorce, whether it is community or separate property.
Over and over I receive calls for uncontested divorces where the parties claim to have “no property” to divide. That is is impossible. Even if you are homeless and living under a bridge, you still have property. What they mean to say is:
- We don’t have any community property, it is all separate; or
- We have already divided our property into our separate homes or accounts; or
- All our property is in our own names
All of those are legitimate statements, but in each case the property has to be listed in the final court paperwork because there IS property to be divided despite what you have done with it or where it came from.
All of the above applies to debts as well. Same designations, community or separate, and they always have to be divided. All of them.
Child Related Issues
If you have children, you also have to agree on the child related items. There are basically three:
- What parent will the children live with (called the custodial parent or person with custody);
- What amount of child support will the “non-custodial” parent pay and who will maintain the health insurance; and
- What kind of visitation will the non-custodial parent have.
Again there are a million variations on what can be done and there are other considerations as well, but these are the big three.
In closing, if you can agree on the three items discussed in this article, you can pursue an uncontested divorce. If you agree on a few, but not all, you will have a contested divorce because ultimately someone has to decide the issue, and that person is the Judge.
Thanks for reading. If you have any questions or wish to schedule consultation, you can contact us to the right.