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Uncontested divorce vs. contested divorce: why they’re not so different after all.

2020-07-14

We tend to think of divorcing couples in very black and white terms. You have your amicable, uncontested divorce candidates in one corner, the at-each-other's-throats couples in another. The amicable bunch can hash things out themselves, no professional legal help required, while the others are going to have to engage their attorneys to fight to the bitter end, leaving a judge to decide who wins and who loses.

The truth is, in any separation there are far more shades of grey than you might expect and if couples enter the divorce process believing that they neatly fit into one category, with one set path ahead of them, they might just end up missing out the kind of divorce they truly deserve: one that's fair, peaceful, and that paves the way for a conflict-free future.

An uncontested divorce.

The assumption is that if neither party wants to contest the divorce, things will be plain sailing and that there's no need to even engage professional counsel. And for a select few, that might just be the case. However, even if you and your spouse appear to agree on pretty much everything right now, it is definitely worth seeking outside help.

Avoiding a default divorce.

If your spouse initiates divorce proceedings with a Petition for the dissolution of the marriage, you will be served with papers outlining your spouse's legal requests; in the event that you fail to respond to the Petition, the court will ratify your spouse's stated legal requests and issue a Default Decree of Dissolution of Marriage.

We often see this happen when couples believe they fall into the uncontested divorce category — the requests appear to be relatively fair and in an attempt to avoid a complicated court case or extortionate attorney fees, the spouse served with the Petition believes this to be the solution with the lowest risk of conflict.

However, a default divorce isn't necessarily the best option, particularly if your case involves complex financial matters, or dependent children. Couples often find that the terms to are far from future proof and further down the line they encounter problems or face conflict from unresolved resentment.

The role of mediation in an uncontested divorce.

While it may seem unnecessary to involve an outside professional in cases in which there is little obvious conflict, talking things through with a mediator can actually mitigate any future problems.

Rather than one partner being served, the Petition is drafted and signed together after the couple has had the chance to collaborate on how they will move forward with everything from the equitable division of financial assets to how they will co-parent. And because mediators are trained professionals, they can guide folks properly to ensure that both parties are aware of whether their demands are legal as well as whether they're fair or realistic.

As such the entire process is less traumatic and less time-consuming and infinitely fairer than the litigation process or accepting a default divorce.

A contested divorce.

It's myth-busting time again: just because you and your spouse can't yet reach an agreement on the terms of your divorce, it doesn't mean that you're destined for litigation.

Yes, in some cases, that's how things work out. For some couples the situation is too complex, the resentments run too deep, or one party is determined to have their day in court.

However, there are plenty of "lost causes" — couples that never expect the mediation process to work for them — that surprise even themselves by their ability to push their emotions aside for long enough to come to a more peaceful and equitable resolution.

Again, rather than simply serving your spouse with a Petition, why not come together in the mediation room to collaborate on the terms you're both going to have to live with for the foreseeable future? Admittedly it may be harder for you to agree on the specifics than for the couples in the amicable corner, but because mediators are trained in conflict management, it will likely be far easier than you might imagine.

Not only will your mediator advise you on setting realistic terms that will help everyone move forward, they can also work with you to uncover and process any anger or resentment that could hinder your attempts to forge a conflict free relationship post-divorce. This is, of course, particularly important if you're going to have to figure out how to present as a strong parenting team, even when you're no longer together.

In many ways, an uncontested divorce isn't so different from a contested divorce after all. Ultimately, whatever your situation, a unilateral Petition isn't the most beneficial way to start divorce proceedings. A more collaborative approach is far more likely not only to help everyone receive a fair settlement but to ensure that the entire process is as quick, as cost-effective, and as conflict-free as possible.

If you'd like to explore the possibility of creating a peaceful path through your divorce process, get in touch to find out how I can help.

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Saturday, 24 October 2020

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