An uncontested divorce is one where both the husband and wife both agree on how to divide their assets and debts, and how to share custody and support of any children that might be involved. Once the spouses have reached an agreement, they can finalize their divorce case and paperwork and obtain a Final Judgment and Decree of Divorce from the court. This is a court order issued by the judge which divorces the parties. In most cases, depending on the county, the divorce can be granted without the parties even having to go to a court hearing.
An uncontested divorce usually costs less than a drawn out battle in court in a contested case, even if the case is settled without a trial through formal mediation. It can get fairly costly having to pay a attorney to make phone calls, send out emails, prepare court pleadings and make a appearances in court. Sometimes it is necessary to hire an attorney for a contested divorce. However, when its possible and the parties agree, an uncontested divorces is typically more efficient and less time consuming. It may take only thirty-one (31) days to a few months for the Georgia uncontested divorce process to be finalized when the parties have decided on a mutually beneficial agreement. In Georgia, this agreement is typically written up into what is commonly called a Divorce Settlement Agreement and filed with the court. If minor children are involved, two more agreements are also typically signed and filed with the court called a Parenting Plan and Child Support Addendum. These two additional agreements will also become orders of the court.
There are obvious financial advantages to a Georgia uncontested divorce, but the biggest advantage is that an uncontested divorce is typically much less emotionally taxing on the divorcing spouses and the children. If the divorcing couple has any children, working collectively and leaving a respectful relationship with the other parent will affect them in a positive manner. In contrast, a drawn out divorce battle and litigation can negatively impact the relationship between parents and children.
In any divorce, there are five major issues that usually get the most attention; these are child custody, child support, spousal support / alimony, division of property and division of debt, which are discussed below:
ONE: Custody of Children
Gaining custody of the children generally includes physical custody, which is the right to have the children live with you and legal custody, which means you have the right to make decisions about things such as the medical care and education of the children. Under Georgia divorce law, both types of custody can either be sole or joint custody. Joint physical custody usually means that the children will spend time at both of the parents’ home; it doesn’t necessarily have to be equally split time. Joint legal custody is where parents share decision making for the children on major issues such as religion, extracurricular activities, education and non-emergency health care. In an uncontested divorce, the details required by the court for child custody to be established can generally be settled by the parties out of court and with an attorney’s guidance. In Georgia, once the parties reach a custody agreement, the details of the agreement are written up in a document called a Parenting Plan, which must be signed, dated, notarized and filed with the court. See O.C.G.A. § 19-9-1.
TWO: Child Support
There are some child support guideline for the state of Georgia that would be the ideal place to start in determining child support. If an agreement can’t be made and the matter has to go to court, the judge will usually refer to the guidelines. In any event, in Georgia, a presumptive amount of child support is first determined using the Georgia Child Support Worksheet. There is spousal support to be considered in case one of the spouses can sustain a lifestyle similar to the one they had while married. In an uncontested divorce, all issues regarding child support can generally be settled by the parties out of court and with an attorney’s guidance, usually be approved by the court. In Georgia, once the parties reach a child support agreement, the details of the agreement are written up in a document called a Child Support Addendum, which must be signed, dated, notarized and filed with the court. See O.C.G.A. § 19-6-15.
THREE: Spousal Support / Alimony
Spousal support, also referred to as alimony are generally regular payments or a lump sum payment from one spouse to the other for a certain period of time for the purpose of providing support to the party with less income. Most divorce cases do not include alimony, but this will always depend on the facts and circumstances for each individual case. In general, there are four types of alimony in Georgia:
- Temporary Alimony / Spousal Support: Payment(s) ordered when the parties are usually physically separated prior to divorce being concluded.
- Rehabilitative Alimony / Spousal Support: Payment(s) given to the lesser-earning spouse for a period of time necessary to acquire education and/or employment outside the home and become self-sufficient.
- Permanent Alimony / Spousal Support: Payment(s) to the lesser-earning spouse a set period of time (years or months), the death of the payer, the death of the recipient, or the remarriage of the recipient.
- Reimbursement Alimony / Spousal Support: Payment(s) given as a reimbursement for expenses incurred by a spouse during the marriage (such as educational expenses).
In an uncontested divorce, all issues regarding alimony / spousal support can generally be settled by the parties out of court and with an attorney’s guidance, usually be approved by the court.
FOUR: Property Division
When dividing property, it is important to be fair in the division of any bank or retirement accounts, investments, pension plans, any real estate the divorcing couple might own, and any debt that may have been incurred while married. It is also important to understand the distinctions between ‘Marital Property’ and ‘Non-Marital Property’.
For example, martial property is subject to equitable division in a divorce and non-marital property is not. One example of non-marital property would be an inheritance, while a home purchased during the marriage will be marital property. However, intermingling non-marital property with marital property can make it also subject to equitable division in a divorce. But all issues regarding the division of property can be settled out of court in an uncontested divorce.
FIVE: Debt Division
This is an issue that is frequently overlooked by parties seeking a fast quick uncontested divorce, which is probably because if usually invites conflict. However, When deciding how to divide debts, the courts will also consider whether the individual debts are ‘Marital Debts’ or ‘Non-Marital Debts.’ For example, a debt incurred before the marriage on an an automobile will generally considered to be a non-marital debt. However, a mortgage on a home or automobile incurred during the marriage will generally be considered a marital debt. Again, all debt issues regarding the division of debts can be settled out of court in an uncontested divorce.
Negotiating an Uncontested Divorce Settlement Agreement
The ideal way to resolve any issues and reach a mutually beneficial settlement is for the divorcing spouses to have a sit down and calmly negotiate the concerns in regards to the children and the property. In some cases, this is not possible for the spouses since there may be some ill-will after the separation.
If the divorcing is incapable of negotiating calmly, there is the option to hire a mediator. A mediator is someone who is neutral third party member who is trained in helping divorcing couples reach an agreeable settlement. It is important to remember that while mediators might be have the ability to help reach a settlement, they don’t have the power to impose a decision. It is also advisable to hire a consulting attorney to review a settlement that has been proposed.
Should the divorcing spouses want a more ordered and supervised process and they both want someone who is looking out for their best interest then a collaborative divorce might be worth looking into. During the collaborative divorce process, each spouse hires and attorney and small team is formed to resolve any issues and reach settlement without going to court. The issue with the collaborative divorce process is that both spouses have to hire different attorneys to handle the case if the negotiations fail. Because of the costs involved in getting different attorneys it is best to settle the divorce in manner that avoids going to court.
After all the major concerns have been resolved and a Divorce Settlement Agreement has been entered into by the parties, one of the divorcing spouses files a document that is known as a Complaint for Divorce at the superior court for the county that one or both reside. If the parties have minor children, a Parenting Plan and Child Support Addendum are also required to be filed. After all the required documents have been filed with the court, it is usually a matter of waiting for at least thirty-one (31) days and sometimes attending a final hearing with the court. If the divorcing spouses hired attorneys to assist them in the divorce, then the attorneys will most likely take care of filing the documents, and a final hearing will not be necessary.
If you are facing divorce and would like to explore an uncontested divorce as an option, call us at 770-609-1247 to discuss your case with one of our experienced divorce and family law attorneys.