As an attorney whose practice is focused in family law, I receive many phone calls from prospective clients seeking representation for an “uncontested divorce”. Sometimes this means that they are looking for one attorney to represent both spouses and draft settlement documents in accordance with the parties’ agreement. Other times they are looking for someone to serve as a mediator and help the parties work out an agreement. I have found that people often do not really understand what an “uncontested divorce” means, or the fact that, in reality, there may be no such thing. As long as both parties understand the realities of the situation, working in a cooperative and collaborative way, including attending mediation, can be an effective, amicable, and cost-effective solution to ending a marriage. However, this is not a realistic solution for every situation, and there are some important concerns to keep in mind and precautions to take when considering an “uncontested divorce”.
1) One attorney, including a mediator, cannot represent the interests of both you and your spouse. In my opinion, the role of an attorney is to be an advocate. It is impossible to be an advocate for both spouses because their interests can be contrary to each other. One attorney can serve as a mediator for both parties, but the role of a mediator is to facilitate you and your spouse working out an agreement on your own terms. The mediator has no obligation to protect you and your interests, to advise you as to all relevant aspects of the law, or to ensure that all issues are addressed in the mediation. As a result, many mediation agreements are incomplete and can often favor one side or the other.
2) An uncontested divorce requires a tremendous amount of trust and respect for your spouse. Proceeding with a divorce without an attorney representing your interests requires you to trust that your soon-to-be ex spouse is and has been completely honest with you about all matters, including the nature and extent of assets and income, commitment to parenting and co-parenting effectively, and willingness to abide by the terms of an agreement. When people stop to consider the circumstances that bring people to divorce, the reality of the situation is often in conflict with the ideal.
3) In reality there may be no such thing as a true uncontested divorce. Even if you and your spouse have a general agreement about child custody, support, or the division of assets, when you start to consider the amount of detail necessary for a separation agreement and parenting plan, you may realize you have not considered all potential issues. How will the parents split custody time over the holidays? What extracurricular activities will a child participate in and who will cover the cost? How will new significant others be introduced to the children?
4) Hiring an attorney does not mean that a divorce has to be high-conflict. People often have the mistaken belief that hiring an attorney will automatically result in an expensive and drawn out court battle where you have to fight over the living room couches. Hiring an attorney can be for the simple purpose of making sure that all important information has been provided to reach a fair agreement and that all the necessary details have been addressed in settlement paperwork in order to fairly protect your interests.
While mediation and other collaborative processes can be valuable tools in working towards a resolution of divorce issues, it may be a mistake to finalize the divorce without your own attorney to advise you and ensure that your interests are protected. At the Thurman Law Firm, we would look forward to meeting with you to discuss these and other family law related matters with you. Please contact David Senkel, Hallie Van Duren, or Linda Freeman at (636) 797-2601 to discuss your case.