What is an Uncontested Divorce and Why is it Not as Straightforward as it May Seem?

When faced with divorce in Utah, there are several reasons why a person would choose the “uncontested” method to get divorced. 

First, the uncontested route appears attractive because it seems to be more simple, or at least less complicated. Another reason is it purports to help couples avoid the stress and conflict that accompanies contested divorces. This can be particularly important for couples who wish to minimize the impact of the divorce on their children. Other reasons include cost and privacy concerns. These are all good reasons to choose a less adversarial route to get divorced. Unfortunately, “uncontested” divorce is not what it’s cracked up to be (as the saying goes). So, what is an uncontested divorce and why is it not as straightforward as it may seem?

In an uncontested divorce in Utah, both parties must agree on all issues related to the divorce, including child custody, child support, division of property, and financial support in a way that the district court judge will approve and enter, leading to your official decree of divorce. It’s true that if your divorce agreement doesn’t meet all the requirements, the district court judge could reject it and decline to enter it. 

The problem with the “uncontested” divorce is that divorces are almost never truly uncontested. Almost always there is at least some part of the settlement that is negotiated–even if it is something as uncontroversial as correcting a name misspelling or including a name change when one wasn’t included in the first draft. Unless your uncontested divorce is reached by default, the truth is you’re looking at a negotiated settlement. So, what is a default divorce? And, what is a divorce by negotiated settlement?

A default divorce in Utah occurs when one party files for divorce and the other party fails to respond or participate in the divorce proceedings. In a default divorce, the filing party may ask the court to grant a divorce by default judgment, meaning the court will grant the divorce in favor of the filing party, even though the other party has not participated in the proceedings. It is important to understand, however, before a default can be granted the filing party must follow the proper legal procedures to notify the other party of the divorce proceedings. This typically involves formally serving the other party through the use of a sheriff deputy or professional process server. 

A negotiated settlement divorce is where the parties involved reach an agreement on all terms of their divorce outside of court. Approximately 90%-95% of all Utah divorces are eventually resolved with some sort of negotiated settlement. So, it’s less a question of if and more a question of when and how. How will you arrive at the negotiation table? Will you be able to do so voluntarily? Or will litigation be necessary first?

A person can arrive at a negotiated settlement before a case is filed or at any stage of a litigated case. It can also take place any number of ways. Here are some of the common ways divorcing couples arrive at a negotiated settlement:

1. Litigation
In Utah, all parties to a litigated divorce are required to attend mediation at least once prior to taking their case to trial. The statistic quoted above applies here too. The vast majority of litigating parties also resolve their divorce with some sort of negotiated settlement. Rarely do divorce cases go to trial. But it does happen from time to time. 

Before two people can meet fairly at the negotiation table, full financial disclosure needs to take place. If one of the parties is reluctant to disclose what they are required to disclose, litigation may be necessary to compel that information. Relavant information can be subpoenaed, witnesses can be deposed, and other discovery tools exist that can compel information from a reluctant party. But litigation feels very much like a high stakes game, complete with very specific and voluminous rules. If you are going the litigation route, get a good litigation attorney to represent you. It is not advised to attempt litigation as a pro se party. This is even more true if the other party is represented by an attorney. 

2. Mediated Divorce
Rather than filing a litigated case with the courts, couples who wish to resolve their divorce using a less adversarial process may opt for the mediated divorce in Utah. But be careful not to get caught flat-footed at mediation! You must do the work and preparation needed before you sit down at the mediator’s table. Do you have full financial disclosure from the other party? Do you know what your exposure is for paying debt, or for alimony and/or child support? Do you know how to properly calculate your income for child support purposes? What about for alimony purposes? There is a different standard when calculating ability and need for alimony than there is for calculating income for child support. You need to know these differences.

A Utah mediator cannot give you legal advice or tell you what to do. In order to make confident, informed decisions at mediation you need to have done your homework and know what your baseline is and what your exposure is for certain potential issues. The mediator won’t be able to tell you what your rights are or what is in your best interest.

Although you can attend mediation pro se, most parties each have their own independent lawyer representing them and advising them on their rights and responsibilities during the mediation session. 

3. Direct Negotiation
Two parties who can communicate with each other enough to negotiate a legal resolution for their divorce can resolve their matter without the assistance of attorneys using a direct negotiation approach. However, not including an attorney at all–at any step of the process–is ill advised. If two parties feel a global settlement has been reached for their divorce, at least one of the parties, if not both, should have their own, independent divorce lawyer review the document and provide an evaluation prior to signing it. 

The "document review" approach combined with a direct negotiation is an excellent way to contain expenses while getting legal advice. 

4. Uncontested Divorce
It’s listed here because it is commonly used term, but it’s somewhat of a misnomer. There are two ways a person can have an uncontested divorce: (1) the non-drafting party signs the agreement drafted by the other party without any dispute; (2) the non-filing party fails to respond or participate after receiving proper legal notice and the court issues a default judgment in favor of the filing party. True uncontested divorces are quite rare.

5. Collaborative Divorce
Last, but not least, one common way divorcing parties who strive to part ways in a more friendly way and without the threat of court, is through the Utah Collaborative process. Here, divorcing parties hire their own, independent, Collaboratively-trained lawyers to represent them in this interest-based dispute resolution process. 

The most important and necessary feature of the collaborative divorce is the presence of a participation agreement outlining the parties’ the four core agreements. The four core agreements are

1. first, that the parties agree to share and disclose all relevant information, openly and honestly.
2. The parties agree to work toward a mutually beneficial solution.
3. They agree to use respectful communication, avoid hostile behavior and cooperate in good faith.
4. Finally, the parties agree to hire new lawyers if litigation becomes necessary.

The collaborative lawyers are disqualified if the parties choose to end the collaborative process and take their matter to the court! This may seem counter-intuitive at first. However, this feature is critical. With the threat of litigation completely off the table, the adversarial nature of the negotiation process is reduced, allowing the parties to focus on finding mutually beneficial solutions that also support the best interests of their children. 

In a non-Collaborative mediated divorce, the threat of litigation can create power imbalances between the parties, with the party who is more willing or able to litigate having the advantage. This Collaborative process encourages more open and honest communication as well as a greater willingness to compromise and find creative solutions that meet the needs and concerns of both parties and their children. This also helps set the parents up for healthy future co-parenting.

Conclusion
A less expensive divorce resolution process that minimizes stress, conflict, and the impact on children is desired by many. Often,  hope is placed in the “uncontested” divorce process as the answer. However, due to the complexity of process and the technical legal requirements needed in your final paperwork, true “uncontested” divorces rarely work out. They are also more likely to be rejected by the court for incorrect and/or missing required information. The reality is 90% to 95% of all divorcing parties will eventually resolve their dispute with some sort of negotiated settlement. The question is how will you arrive at the negotiation table? Will you take the most expensive route of litigation? Or will you take one of the easier, less expensive, voluntary routes? No matter what route you choose, be prepared to negotiate your settlement and--at a minimum--have an attorney review your documents.

For legal support or guidance with your DIY divorce, check out Divorce Like a Pro. Or, to learn more about the Collaborative legal proces, click here. Not sure where to start? Successfully complete our free 30-minute mini-course, Divorce 101, and get a free strategy session with attorney Jennifer L. Neeley.