Many spouses are able to finalize their divorce without a “contested” court hearing, without going through initial disclosures and discovery, and with a degree of civility. In other words, many spouses get uncontested divorces. Although there are no official figures out there, I would say most uncontested divorces are finalized without an attorney on either side. This is troubling for many reasons: divorce decrees done without an attorney can be unclear and impossible to enforce should one party decide not to follow the decree, and property division and child custody provisions can be very complex and misleading and result in effects far different than intended. Additionally, decrees can even be missing critical provisions, leading to further court action down the line. In sum, uncontested divorces can lead to divorce decrees that are a ticking time bomb of legal headaches.
At TLC Law, we are equipped to handle the most complex divorce cases at every step of the litigation process and even through appeal. But a good chunk of our business comes from uncontested divorce cases. There are many reasons why it makes sense to hire an attorney for your potentially uncontested divorce, and many things to think about before you can even say your divorce is truly “uncontested.” I’ll address some of the common questions surrounding uncontested divorce below:
Is my Divorce Uncontested?
There may be no lawsuit with more legal issues than a divorce. To be truly uncontested, you and your spouse need to discuss the many issues and how you wish to resolve them. If you have not, the uncontested nature of your divorce may be a mere mirage. You have the issue of the divorce and the grounds for divorce, the issue of property division, and all the issues related to the children of the marriage, including visitation, health insurance, child support and conservatorship. This is just a broad overview of the issues. More important to your divorce is how you resolve these issues. Meeting with an attorney is a great way to get educated on the issues you need to address and the potential resolutions. Once equipped with this information, you can then have a better discussion with your spouse to see if you can really get this done without a fight.
Won’t getting an attorney just lead to a contested case?
Actually, I’ve found it to be just the opposite. Getting an attorney can help ensure the case is and remains uncontested, for a few reasons:.
Attorneys can create binding settlement agreements: Even when spouses have a basic understanding of the issues and have agreed to the terms of a settlement, a party can still change his/her mind. This is where an attorney comes in. We can draft settlement paperwork, called a Rule 11, to bind the parties to the agreement until the divorce can be officially finalized after the 60-day waiting period. Attorneys can even draft agreements that are filed with the divorce petition, and this can put both spouses at ease knowing the divorce is agreed from the outset.
Attorneys can help parties communicate with less emotion: Although I cannot and will not represent both spouses, I can meet with the opposing party (if he/she doesn’t have an attorney). Depending on the nature of the case, and the attitude of the other party, a meeting with my client and the opposing party can put everyone at ease and lead to a more informed and faster resolution of the case. Attorneys are often viewed as troublemakers; as wanting to cause problems.
But, in all honesty, attorneys have little incentive in making what could be an uncontested case a contested one. I enjoy seeing spouses resolve their divorces without the uncertainty that comes with court hearings and a judge (a stranger) deciding their fate. But, more practically, clients pay me a relatively low fee for an uncontested case and they often don’t want the case to become contested, lest they have to pay me more money. When everyone wants the same thing—an uncontested divorce—we can talk freely about the case; what is reasonable in the situation, how to customize a decree to fit the needs of the parties; what would happen if a judge decided the issue, etc. Quite simply, attorneys can help spouses think rationally and without a shouting match.
Can’t I Just Fill Out the Forms Available Online or from the Law Library?
Sure, you can. Many people use texaslawhelp.org and its resources to file and finalize their uncontested divorce. But, beware. Even Texaxlawhelp.org rightfully says that you should still consult an attorney. The site is designed for people with simple uncontested cases that fit within certain frameworks. A customized divorce can be very difficult with Texaslawhelp.org. And although the site does an admirable job explaining the legal processes and the legal standards, all this is quite confusing to people and it’s no substitute for a meeting with an attorney.
Can’t I Just Get an Attorney to Help me With Some Parts of an Uncontested Divorce? Won’t this save me some money?
Yes and perhaps. Sometimes people come to my office and don’t want to pay the entire fee for an uncontested divorce; they just want some advice on getting it finalized, or they just want me to draft the decree, or they may even want me to help them settle the case while they do the drafting.
Either way, an experienced and local family law attorney can sometimes represent a party in this limited manner, called a limited scope engagement. This can save clients’ money, but such limited scope engagements are…well, limited in scope. For instance, if I’m just reviewing documents or helping parties settle, I don’t agree to sign any court documents as the attorney and I don’t agree to go to court for my client. I do the best I can, for a lower fee, and let the client finish off the case.
Some attorneys don’t handle limited scope engagements. I am willing to do so, as long as my client understands that having an attorney for the whole case is the safer option. Unless I have my hands on all aspects of the case, I can’t guarantee that you won’t make a critical mistake. Limited scope engagements are like consulting with a plumber to fix your toilet, but not letting the plumber do the work on the toilet; the plumber can tell you what to do, can even review what you’ve done, but he can’t ensure you did it correctly. We live in a self-help society and I understand this. Getting some help from an attorney is still better than no help.
What if my spouse has an attorney? Should I get an attorney too? Would that make the divorce contested?
If your spouse has an attorney, you don’t need an attorney but it’s recommended you at least consult with one. If your spouse has an attorney and you feel that the opposing attorney wants to settle the case without a fight, you are free to talk to the opposing attorney. That attorney might be, as I often am, on the case for a limited fee in hopes of settling it without a contested court hearing. However, this is almost impossible to determine. That attorney does not represent you and doesn’t have to be honest with you, or even tell you what your spouses’ intentions are.
Therefore, I would advise that, if your spouse has an attorney, that you at least consult with an attorney yourself. An attorney can review paperwork filed by the other attorney, can discuss what might be a fair settlement under the circumstances, and can put your mind at ease. If you do retain an attorney, this doesn’t mean your case is automatically contested. In fact, when both sides have attorneys, the parties still control the outcome of the case, they just have representatives working for them. I’ve handled many cases with attorneys on the other side that result in quick agreements. Sometimes, my job can be as simple as making sure you don’t get a raw deal.
Contact me today at (903) 871-1714 to set up a consultation and get expert advise for your divorce case.