An uncontested divorce is one in which both parties are in total agreement as to the division of their marital property and all other terms prior to filing the petition for divorce. Uncontested divorce is not right for every couple seeking a divorce. An uncontested divorce is much more likely to be appropriate for couples with no minor children and no significant debts or assets. However, if the parties are agreeable, an uncontested divorce can be used by couples with children, significant property, and significant debt as well.
The Terms of Georgia Uncontested Divorce
Couples should consider and agree upon all material terms of the settlement agreement before filing the petition. Material terms include such categories as:
- child support and related issues such as: child care, private school, activities, visitation expenses, etc.
- custody and visitation, which will require an agreement to a Parenting Plan.
- division and allocation of martial debts, including but not limited to: taxes, credit cards, mortgage payments, judgments, liens, etc.
- spousal support, which can include alimony, attorneys fees and related issues.
- division of marital property, assets, real property, business interest, personal property, financial assets, etc.
After an agreement is reached, either party may file the Petition for Divorce or Complaint of Divorce, which are both the same. Any name changes that either party wants to make, needs to be included in the petition. As with a contested divorce, the petition must be filed in the county where the couple resides or if the couple lives in different counties, where the non-filing spouse resides. The person who files the petition for divorce is the plaintiff or petitioner. In most uncontested divorce cases, the plaintiff / petitioner is the party represented by an attorney. The same attorney will not represent both parties but because the divorce is uncontested it is unnecessary for both parties to have representation. The other party is most often referred to as the defendant or respondent, and they can choose to have their own attorney if they desire. Although all of Georgia’s thirteen (13) grounds for a divorce can be pleaded in an uncontested divorce, most people opt for the no fault reason of “the marriage is irretrievably broken.” See O.C.G.A. Section 19-5-3(13)
The Benefits of Choosing an Uncontested Divorce
There are several benefits to filing for an uncontested divorce in Georgia. An uncontested divorce is the quickest, easiest, and least expensive way to obtain a dissolution of marriage. Because the parties have already agreed to the terms of the divorce, a document called a Divorce Settlement Agreement is signed by both parties in the presence of a notary. This Divorce Settlement Agreement is filed at the same time as the initial petition for divorce, which is frequently called a Complaint for Divorce. Georgia requires a few additional forms, including a detailed statement of each party’s financial situation, commonly known as a Domestic Relations Financial Affidavit. In Georgia, filing fees are around $225 for an uncontested divorce, but there may be additional administrative fees, electronic filing fees and other fees that vary from county to county.
If the judge agrees that there are no discrepancies as to the terms and other information within the paperwork, she or he will usually sign off on the agreement of the parties. Most uncontested divorces are granted between 31 to 60 days from the date of filing, but may take longer depending on the complexity of the case and the work load of the court. Since there is no trial, much less personal information is made public and neither party has to fear an airing of “dirty laundry” within a public forum. Most attorneys will offer to charge a flat fee for a simple uncontested divorce because there is a designated end date and a predictable amount of work for the case. This makes uncontested divorce, far and away, the most affordable option.
The Drawbacks to a Georgia Uncontested Divorce
While there are many benefits to filing for an uncontested divorce, there are also potential pitfalls. A quick divorce process may tempt couples to make hurried decisions that have not been well thought out therefore, leading to disputes in the future. A later modification of the settlement agreement will require going back to court. Also, modifications to divorce cases are usually difficult to do without the assistance of an attorney, so hiring an attorney should be expected. Therefore if the parties just rush through an uncontested divorce without giving ample consideration to the actual terms, essentially the couple may have only delayed, rather than avoided the divorce litigation process.
Also, under Georgia law certain provisions in an uncontested divorce agreement cannot be modified. For example, property division cannot usually ever be modified, and also written agreements not to modify child support and alimony can be enforced in Georgia courts. This is why it is essential that the parties truly agree on the terms at the time of filing, and understand the implication of each sentence in their Divorce Settlement Agreement, Child Support Addendum and Parenting Plan. And if a reasonable party cannot reach an agreement with their spouse about an important aspect of the divorce, they would certainly be better off letting the court decide the issue. With the exception of asset division, most other aspects of a divorce can be modified later if needed if the court makes the final initial decision for the divorce case.
When an Uncontested Divorce May Not Be an Option
Uncontested divorce is a solution for a very specific group of couples. If either one or both parties are acting irrationally, an uncontested divorce is absolutely not an option. If there is any history of domestic violence or abuse in the marriage, the couple is not on equal footing and therefore, an uncontested divorce is not appropriate. This process requires complete diplomacy from both parties and is best suited for couples that have reached a mutual understanding and wish to walk away amicably. In order to reach a settlement agreement prior to filing, the couple will have to cooperate and each person will make compromises for the luxury of being able to walk away from the marriage quickly.
Complications in Some Uncontested Divorce Cases
If there are major issues concerning property division or child custody, the divorce inherently is not uncontested because these are issues that will need to be litigated. This is not to say that couples with large assets or children cannot get an uncontested divorce. Indeed, if the couple is capable of exhibiting the requisite diplomacy and peaceful negotiation, this option is truly in the best interest of the children because it is over quickly and quietly. However, to avoid a full blown trial, the parties can agree to mediate the disagreements. And if mediation is not successful, the parties can agree to binding arbitration. While not common, more parties should consider agreeing to binding arbitration.
Getting Help With Your Georgia Uncontested Divorce
Although uncontested divorces are easier to obtain, it is never advisable to represent yourself. Divorce proceedings cause emotions to run high and the uncontested divorce presents the temptation of making hasty decisions in an effort to quickly move the process along. For these reasons, it is very important to hire an attorney in order to have an objective party advocating for your best interests. If you are the unrepresented party in an uncontested divorce, there are some measures you can take to ensure you are equally protected:
- do some independent research on the process of uncontested divorce;
- speak with a trusted friend and an experienced divorce attorney, and tell them your goals in coming to a settlement agreement;
- have that same friend act as a consultant and look over the final agreement before you sign.
Then have your attorney review the documents for any legal issues that you and your friend may have overlooked. The above measures taken by both parties will ensure the divorce is done properly so that both parties can peacefully move on with their lives.
If you are facing divorce and need to speak with an experienced divorce and family law attorney, call us at 770-609-1247 to schedule a confidential consultation.