Uncontested Divorce – Mutual Agreement or No Fault Divorce

There seems to be a bit of public confusion about what is meant by “uncontested divorce”. A few words on the subject may serve to clear things up. Many people will say that they have, or want, an “uncontested divorce” when what they really mean is that there is either mutual agreement to end the marriage or there is no issue between them as to assigning “fault” for the end of the marriage.

The fact of the matter is that in California, as in most states, there is what is called “No Fault” Divorce. This means that the traditional “grounds” for divorce such as abandonment, infidelity and -my personal favorite- mental cruelty, no longer exist in the law. Rather than plead and prove grounds for divorce all that is required is for one spouse to state that “irreconcilable differences have arisen leading to the irremediable breakdown of the marriage”.

Accordingly, since there is no “contest” as to grounds for divorce a truly “uncontested divorce” means that the parties have come to complete agreement on all the issues involved in the dissolution of their marriage. Division or sale of real and personal property, support of children, parenting plans, spousal support, allocation of retirement funds, everything all decided and uncontested. This is a great situation but, in truth, a rare event.

Most people is going through a divorce, even those with the highest degree of cooperation and the lowest levels of conflict, still need professional assistance in managing the decision making process around these complex issues.

People going through a divorce must be very careful choosing the type of professional they select to assist them in the process. On a recent occasion I had a couple come into my mediation office telling a horror story about a family law attorney the wife of the marriage had consulted. She said that she went into meet the lawyer with the expectation that the attorney would clarify and “paper the deal” she and her husband had agreed upon in broad terms. She told me that she had literally said to the lawyer “here is what we have decided” only to have the lawyer instantly interrupt her and say, “get this straight right away – from now on there is no more “we”!” Fortunately that woman had the good sense to not walk, but run away from that lawyer’s office.

Many times I have heard the tragic story where one party to a divorce confides that the spouses went into the divorce action with fairly good, non-confrontational attitudes and each hired a lawyer to assist them in the orderly dissolving of their marriage. Then, to their great dismay and chagrin, 12 months later, they hate each other, they hate their own and each other’s lawyers and they are financially devastated.

Since an “uncontested divorce” by definition is non-adversarial, an advocate or lawyer is not necessary and as too often happens can thwart the true wishes of the parties to end their marriage peaceably. Most people would be best served by engaging a Divorce Mediator to help them identify the issues, manage them and draft a Marital Settlement Agreement that fully and completely addresses and resolves the myriad issues presented in the dissolution of a marriage. By this means they can save thousands of dollars and miles of heartache.

More From My Blog