Uncontested Divorce

Uncontested Divorce

There are many benefits to filing jointly for divorce, but there are also some potential pitfalls to be aware of, as you move through the process. A divorce can be filed as a contested matter, with one party as the Petitioner and one as the Respondent. A divorce can also be filed as an uncontested matter, wherein both parties are Joint Petitioners. An uncontested divorce is usually filed by people who feel as though they are able to communicate well, reasonably discuss the important issues relevant to the divorce process, and proceed relatively amicably, as the divorce progresses. Retaining a knowledgeable family attorney can help you to navigate a joint filing with as few problems as possible.

An uncontested divorce begins with the filing of a Joint Petition for divorce, with the county Clerk of Courts. There are two versions of this petition: Joint Petition for Divorce With Minor Children and Joint Petition for Divorce Without Minor Children. Filing jointly means that no personal service of the summons is necessary, as both parties will sign the pleadings and consent to a waiver of service. This saves parties money, in that usually personal service requires payment of the Sheriff or a private process server.  After the divorce is filed, uncontested divorces are almost always less expensive than are contested divorces. Sometimes, no temporary order will be needed, and many times, if a temporary order is necessary, such an order would be done as a stipulation, rather than as a result of a contested hearing. Parties who are able to communicate and cooperate will generally have fewer court appearances, which will save substantially, on legal fees. In a true uncontested divorce, the involvement of the attorneys would be primarily limited to an advisory role, making sure that a client is aware of and understands all of her options, explaining potential agreements, consequences and outcomes in the context of the law and of the unique facts of your case. Joint litigants do not typically pay attorneys to argue extensively, with the other side, and so the cost of legal counsel becomes much more manageable, for these parties.

Filing jointly also saves time. Wisconsin has a mandatory 120-day waiting period that must elapse prior to the divorce being final. In a contested divorce, this period begins with the personal service of the pleadings(papers), upon the other party. If someone’s location is unknown or uncertain, personal service can take time. In an uncontested divorce, the 120-day clock starts counting down as soon as the joint petition is filed. In this way, filing jointly also saves time. Also, if people can talk through conflicts and come to resolutions themselves, they will not be at the mercy of the court’s calendar, for hearings and other appearances, and resolution will occur more quickly. Often, when parties have a specific agreement in mind, they will be able to present it to their respective attorneys, ask questions, and proceed directly to a final settlement. The sooner a comprehensive agreement is reached, the sooner the divorce can be finalized.

Joint filing is not without its challenges, and having counsel by your side is important, even if you and your spouse are getting along, for the present. Many times, parties will need to divide retirement assets. If the asset is a pension, the pension will need to be valued by an accountant. If the asset is a 401(k), it will need to be divided by Qualified Domestic Relations Order. If the parties own a home, it will likely need to be appraised, to determine its value. An attorney can make sure that assets like these are valued appropriately and divided as ordered, after the divorce. If spousal support is an issue, an attorney will be able to tell you what a reasonable amount might look like, and explain the relevant factors associated with a maintenance determination. An attorney would also be able to tell you whether an agreed-upon child support amount meets statutory guidelines and whether the other party’s income bears further consideration. If you have an agreement with your spouse, an attorney can tell you what is fair, what may be of concern, what the law says, and what a judge might order, should the matter be litigated. An attorney can draft important legal documents that include all agreed-upon terms, as well as other language that may be important, to secure your interests. Finally, if the relationship between you and your spouse does break down during the course of the divorce process, an attorney who already has a thorough knowledge of your case will be better able to advocate for your interests in court, if necessary.

IMPORTANT: An attorney can only represent one party, in a divorce, even if you filed jointly.

Filing jointly is not for everyone, but it is financially beneficial to the parties, and it saves time. Filing jointly does not mean you should not retain an experienced family attorney, for guidance. Feel free to contact our office, for more information or to set up a free consultation.

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