When spouses decide they want a divorce, it does not have to be adversarial and contested. In fact, most divorces are done amicably between spouses, even with attorneys involved. Having spouses work out divorce agreement between themselves without the court imposing its will on them can satisfy the spouses in that they have control over what happens to their children and property. When spouses are in agreement on all issues in their case, this is what is called uncontested or agreed divorce. The goal of uncontested divorce is to obtain an agreed final decree of divorce between the spouses resolving all issues between them.
To begin, usually it is advisable that at least one of the spouses hires an attorney to handle the uncontested divorce of the parties. That attorney will only represent one spouse, as family lawyers are ethically prohibited from representing both spouses. However, the spouses can communicate with one another on their desired outcome on the issues in their case. The other spouse can also hire their own attorney to represent them in the process, and this is also advisable so they fully understand the nuances of the process and the consequences of the legal documents they will ultimately sign.
The divorce is begun by filing a petition for divorce in the county where the spouses reside. At this point, the divorce is on file with the court and one of the spouses has let the court know that they want a divorce and they expect it to be amicable. After this, the other spouse will acknowledge the divorce through either a waiver of service or a friendly answer to the lawsuit. This lets the court know that the other spouse knows about the divorce and is planning on agreeing to it after negotiating with their spouse. There is a waiting period to obtain a final divorce, so during that time, the parties will conduct their negotiations to reach agreements on the issues in their case concerning children and property.
When it comes to reaching agreements on children, there are specific rights and duties to the children that the parties will want to discuss. These include rights to establish their residence, to make medical decisions, and educational decisions. Also, the parties will want to discuss visitation with the children. The good part about an agreed divorce is that the parties can become creative with the visitation schedules they set with the children, which could be on the weekends for example, or could be alternating weeks.
The parties will also want to discuss child support and health insurance for the children. Typically, the parent who has custody will receive child support from the parent without custody. This is designed to support the children indirectly through support paid to the custodial parent. The amount can be established based on the income and expenses of the paying parent and the needs of the receiving parent. An examination of the parents’ financial condition can help with this determination. In addition, the parents will need to decide who will carry health insurance for the children and who will pay the unreimbursed medical expenses for the children, such as co-pays and deductibles. Again, the parents can get creative with this and determine an equitable share to pay among themselves.
For property division, the spouses will have to determine what to do with their key pieces of property, such as houses, vehicles, bank accounts, retirement accounts, brokerage accounts, and any businesses owned by the marital estate. It will benefit the spouses immensely to fill out a financial questionnaire that details all assets and liabilities in their estate so that their attorneys can get a better idea of the financial condition of the marital estate. Once this is done, an asset and liability sheet can be prepared that will show the total value of the marital estate and will help in determining who gets what assets and debts.
For the parties’ marital residence, the spouses can decide that one of them will keep it, it will be sold, or that it will be awarded to one party with them having to refinance it. When one spouse keeps the house without a refinance, a deed is executed from one spouse to the other with the mortgage remaining in both spouses’ names such that they are both liable on the mortgage post-divorce. This might happen if the spouse keeping the house does not have enough credit to refinance. In this case, the spouse keeping the house will have to grant an interest in the house to the other spouse so that they can foreclose on it in case of nonpayment. If neither spouse can keep the house post-divorce due to not being able to afford it, for example, then it can be sold and the net proceeds split between the parties. This often happens because the income the parties have once separated is less than the income they had when they were married.
For retirement accounts, the spouses can agree that one spouse will either receive the asset in full or the other spouse will receive a share of that asset after the divorce is final. This is typically done through a QDRO (Qualified Domestic Relations Order) which is a separate order from the divorce decree that the court signs granting a spouse an interest in their spouse’s retirement account. Once it is signed by the judge, it is sent to the plan administrator for distribution to the payee spouse. Some retirement accounts do not require a QDRO, so be sure to ask your attorney about the necessity for one.
A family business can also be awarded to one spouse with the other spouse being bought out, or it can be sold. An appraiser is typically going to have to do an evaluation of the value of the business before the buyout takes place, and if the spouse seeking to keep the business cannot afford the buyout or the business cannot operate without both spouses remaining as partners in the business, then it will need to be sold.
For vehicles, spouses typically keep the vehicle they have been using during the marriage, unless otherwise determined during divorce. Vehicle loans act like mortgages in that both spouses remain on them unless the vehicle is refinanced.
Once the spouses determine who will receive what property, the terms of the divorce will need to be put in an agreed final decree of divorce that the court will sign after the waiting period has expired. At this point, the spouses will have obtained a Stamford uncontested divorce and will need to comply with all post-divorce orders of the court regarding children and property.