Author: Caryn S. Fennell, Attorney at Law: Caryn S. Fennell & Associates
In Georgia, there are two types of divorces, uncontested and contested. The main difference between the two is whether the parties are able to reach a Settlement Agreement resolving all issues related to the marriage, including Custody, Division of Debts and Assets, Alimony and Child Support.
In a truly uncontested divorce, the parties agree on all elements of the dissolution of the marriage and do not require a court to intervene. This agreement can come at any stage of the divorce process, including before the divorce litigation is filed.
More often, the parties do not reach an agreement until after litigation is filed and sometimes require mediation before they reach a full and complete agreement. Once the agreement is reached, then it is memorialized in a Settlement Agreement that is signed by the parties and filed with the Court. Once signed by the parties, the Settlement Agreement is fully enforceable and un-appealable unless under very extreme circumstances that shall not be reviewed in this Guide.
If the parties have minor children, then they must also file 1) Financial Affidavits, with supporting income documentation, 2) a Parenting Plan that is also signed by the parties, 3) a Child Support Worksheet that complies with the Georgia Guidelines for Child Support, 4) certificates of completion for of the Divorcing Parents Seminar, and; 5) if required by the venue, then the parties must also file a Child Support Addendum.
After the agreement is reached, the parties may ask the Court to grant them a final decree of divorce either through a hearing or by motion of the Court, depending on the preference of the Court. If the documents are in proper form, then the Court shall grant the decree of divorce. One of the major benefits of this strategy is cost. However, it is not unusual for even an uncontested divorce to be costly to the parties, but it is not nearly as expensive as full litigation and the expenses of trial.
Logically, the opposite of an uncontested divorce is a contested divorce. A divorce can be either fully contested or contested in part. A fully contested divorce is one where the parties are incapable of agreeing on anything without judicial intervention. Divorces contested in part are those where the parties may settle certain aspects of the divorce, but the balance of issues are litigated through to trial and determined by a Judge or Jury.
Uncontested can be very costly, damaging and highly emotional due to the nature of the conflict between the parties. They usually take months, if not years to complete and result in neither party being truly happy with the outcome. In the end, the Judge decides how to split up the assets, how much alimony is to be paid, if any, who shall have primary custody of the children and how legal custodial rights shall be shared, if at all. More often than not, most people who pursue a divorce all the way through to a trial are never pleased with the results, which makes the idea of an uncontested divorce a far more attractive option.
CONSEQUENCES AND BENEFITS OF UNCONTESTED DIVORCES
Any good attorney will advise their client to never settle on a deal that is patently unfair to their client. However, if they are worth the retainer paid and are truly client-centered versus money-centered lawyers, the same attorney will never advise a client to litigate a case that can or should be settled prior to trial. The benefits of settlement or an uncontested divorce are immeasurable. They are best explained through a discussion of the consequences of contested divorces.
One main consequence is the harm to any children of the marriage. Children are often wedged between feuding parents and used as pawns to punish each other. Even those parents who try to keep their children out of the middle of litigation do not fully succeed. Publicly airing each other’s dirty laundry, falsely accusing each other of misconduct, or fighting about the minutia can leave children scarred for life. Another consequence, aside from the extraordinary costs of litigation, is that it is always a gamble to leave the decisions about custody, assets, and other matters to a Judge to decide.
More often than not, after months of years of fighting and thousands of dollars on legal expenses, neither party is happy with the decision of the Judge. Thus it is better to settle on your terms than to be forced to accept those of the Judge. There is no doubt that there are rare occasions when it is worth fighting over issues of a divorce. But is it best to choose those fights wisely, as more often than not, being right is not nearly as important as doing the right thing for everyone involved.
Author: Caryn S. Fennell