Is an Uncontested Divorce the Right Choice For You?

Posted by Diane Cherry, Managing Partner | Nov 26, 2022 | 0 Comments

Is an Uncontested Divorce Best For You?

It's easy to assume that, when given the option, it's always best for a divorce to be uncontested.  The rationale is that if you and your spouse are getting a divorce, Why not agree from the outset that you will minimize expenses and have an uncontested rather than a contested divorce?

Is an uncontested divorce always the best choice?  Not always.

An uncontested divorce makes sense if and only if: (i) you have full knowledge of all marital and non-marital assets, (ii) you understand your legal rights in Georgia, and (iii) you accept that once you agree to the terms of an uncontested divorce and the divorce is finalized, you will not be able to redo the settlement terms at a future date if your financial situation changes or you subsequently conclude the settlement was not fair and equitable.

Do not consider an uncontested divorce absent full transparency and disclosure, which are fundamental to a fair and equitable uncontested divorce. Each spouse should disclose to the other full and complete statements to all accounts—both marital or non-marital.  If you were buying a used car, you wouldn't begin to negotiate without knowing everything about the car (make, model, mileage, maintenance and accident history), right?  Well, negotiating the end to a marriage is no different. You should never negotiate without full disclosure.  If your spouse claims that some accounts are “off limits” or “non-negotiable,” those are red flags that your spouse is not willing to negotiate in good faith and wants you to leave the marriage with less than what you are legally entitled to.  If that's the case, you should be getting a traditional, contested divorce instead of an uncontested divorce.

A basic understanding of your legal rights is also necessary before choosing an uncontested divorce.  Do you understand that nearly all assets acquired during the marriage are marital assets regardless of whose name they are in?  That typically means any real estate, retirement contributions, bank deposits and other investments are marital property to which you have a claim?  Are you familiar enough with Georgia law to understand that most Judges divide marital property equally in Georgia regardless of the reason for the divorce?  That's important to understand.  Don't make the mistake of assuming that marital assets are only assets that are in joint names.  All assets acquired during the marriage are marital even if in one party's name.  Do you understand that if you were a stay at home parent during the marriage or earn significantly less than you spouse, you may have a claim for alimony under Georgia law?  If you are not aware of these legal rights, an uncontested divorce may not be the best option for you.

If children are involved, you also need to understand how Judges in Georgia typically handle child custody cases.  Of course, it goes without saying that Judges always have to consider the best interest of the children, but in real terms, how does the “best interest” standard pay out in Court?  Not, as many people assume.  For example, Judge don't assume that 50/50 custody is best for children  Equal time means the children wont have a true home base and will likely feel like they live out of suitcases.  And equal time usually means that one spouse is doing a lot more work than the other and not getting proper child support.  If you have children and have not considered these uses, an uncontested divorce may not be what you need.

Finally, are you sure that you have carefully through through the ramifications of an uncontested divorce and are choosing to go down that path for the right reasons? If you are agreeing to an uncontested divorce just to “get it over with” you are probably shortchanging yourself and setting yourself up for future disappointment.  Some people agree to an uncontested divorce out of fear embarrassing in court disclosures.  However, it's more important to secure your future than address an embarrassing issue—and most of what clients think of as embarrassing these days rarely raise an eyebrow of lawyers and Judges who have heard and seen it all.  Think about your future welfare and what is truly best for you and your children before choosing an uncontested divorce.  

If you are fully aware of all marital and non-marital assets, have an understanding of your legal rights in Georgia and are comfortable that you won't regret your decision later on down the road, then saving yourself monies on an uncontested divorce may be the right option for you.

About the Author

Diane Cherry, Managing Partner

I am an Atlanta area Family Law Attorney who has represented hundreds of clients in federal and state courts and administrative hearing cases throughout the State of Georgia.


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