What Is An Uncontested Divorce?
Just hearing the word divorce conjures an image for many estranged spouses battling one another in court over every last issue, from the division of property to child custody. But the truth is that most divorces are much more amicable. Indeed, many divorces are uncontested–that is, the spouses jointly agree on how to end the marriage and opt not to engage in a lengthy process of litigation.
While an uncontested divorce is not possible–or even appropriate–in certain cases, there are many reasons why this may be the best option for your own failing marriage. Here are just a few reasons why you and your spouse should seek an uncontested divorce.
You Can Save Time and Money
Any type of litigation is expensive. It can take months, or even years, to bring a contested divorce case to trial. And even once a judge hears all of the evidence and renders a decision, either spouse can opt to appeal, which can add even more time to the final resolution of a case. More to the point, this approach is also costly for both sides.
Of course, an uncontested divorce is not free. Each spouse will likely still need to retain their own attorneys to represent them during any settlement negotiations. There are also certain court costs that cannot be avoided. But altogether, an uncontested divorce will almost always be cheaper and quicker than litigation.
You Can Retain Control Over Your Future
When a marriage is breaking down, anger and resentment often drive the parties towards litigation. What these spouses often fail to consider is that by going to court, they are effectively handing over control of their futures to the judge. In a contested divorce, it is the judge–not the spouses–who ultimately decides how to divide marital property, award alimony, deal with child custody and child support, and so forth.
That is not to say a court plays no role in an uncontested divorce. In particular, a judge must still review and approve any proposed parenting plan to ensure it reflects the best interests of the children. When it comes to issues of money and property, however, a judge rarely stands in the way of what the parties agree to on their own.
You Can Protect Your Family from Unnecessary Stress
Even the friendliest of divorces carry some emotional stress. And even when a divorce is uncontested, there are often still some points of disagreement that the parties must navigate. Yet if both sides trust one another enough to negotiate in good faith, the process can be relatively stress-free. Or at the very least, it will not make things worse. Remember also that a divorce does not just affect the spouses–children and other family members are often collateral damage. So it is often in the best interest of the family as a whole to resolve a divorce as quickly and painlessly as possible.
When Is an Uncontested Divorce a Bad Idea?
As noted above, there are situations where an uncontested divorce is either not possible or not advisable. Perhaps the most notable example is if there has been any abuse or domestic violence in the marriage.
When one spouse is the abuser, the other spouse may be coerced into a settlement that is not in their best interests. Similarly, if there is a power imbalance in the marriage due to other factors–like one spouse earns substantially more than the other–an uncontested divorce may put the other spouse in an unfair situation.
Even when there is no power imbalance, it may also be the case that the spouses simply no longer trust one another. This is often the case when there has been infidelity or substance abuse. The other spouse may feel that it is pointless to try and negotiate with someone who has proven to be an unreliable partner in the marriage.
Finally, there are situations where a settlement proves impossible because one or both spouses make intractable demands. Perhaps one spouse insists on sole custody of the children. Or the spouse wants full ownership of a particular property. As with any negotiation, there may come a point where the two sides are simply too far apart and a judge needs to step in and decide the matter.
How Uncontested Divorce Works in Illinois
But assuming two spouses are in a position to resolve their outstanding issues, how does uncontested divorce actually work? As with any divorce in Illinois, the process begins by filing a petition with a circuit court clerk. Usually, this is the county where the couple, or at least one of them, has lived.
Keep in mind that under Illinois law, one spouse must be a resident for at least 90 days prior to filing for divorce in the state. In a contested divorce, one spouse will formally serve the other with their petition. But Illinois law also makes it possible for both spouses to co-file a “Joint Petition for Simplified Dissolution.” This is basically the easiest way to obtain an uncontested divorce in Illinois, but it is only an option if all of the following requirements are met:
So basically, if you and your spouse were only married for a few years, have no children, do not own your home, and do not earn a lot of money, you can get an uncontested divorce simply by filing a joint petition with the court.
Even if you do not qualify for this simplified divorce process, however, you can still go through the normal procedure of serving your spouse with a petition, even if you have already agreed to all of the substantive terms of a settlement.
Negotiating an Uncontested Divorce Settlement
The key to an uncontested divorce is to negotiate and sign some form of a settlement agreement. This document can go by many names, including a “Marital Settlement Agreement,” “Property Settlement agreement,” or “Separation Agreement.” Regardless of the name, the purpose is always the same: It is a written contract between you and your spouse that covers the following subjects:
Once a settlement agreement is signed and approved by the court as part of your final divorce judgment, its terms typically cannot be modified except with the agreement of both sides. And any provisions with respect to child custody or child support can only be amended if a judge determines there has been a material change in circumstances and that an amendment to the original agreement will be in the child’s best interests.
Do You Need Your Own Lawyer in an Uncontested Divorce?
Some divorcing couples are eager to avoid dealing with lawyers at all. They may decide to write their own settlement agreement and file their own paperwork with the divorce court. Or they might decide to just hire one attorney to handle the matter for both of them.
In general, this is a terrible idea. For one thing, an attorney cannot ethically represent both spouses in a divorce case, even one that is uncontested. And if only one spouse is represented by counsel, the other may later claim they were taken advantage of during settlement negotiations and ask the judge to throw out the agreement.
In practice, it is always best for each spouse to have their own attorney. Hiring separate lawyers does not mean the spouses want to litigate. It simply means both sides are taking the divorce seriously and want to make sure that all legal formalities are properly observed.
So if you and your spouse are planning to seek an uncontested divorce, and you would like independent advice from a qualified Naperville divorce lawyer today to schedule a consultation with a member of our team.