Alternatives to Uncontested Divorce
What is an Uncontested Divorce?
An uncontested divorce is a type of divorce that allows you and your spouse to settle all your issues outside of the court. This makes the process cheaper and allows it to go much quicker and smoother than other types of divorce. In turn, it creates less tension between you and your spouse. If the two of you cannot settle certain issues alone, you can always hire lawyers to get involved. This may seem more intense, but it can actually keep things more civil and less stressful than any other divorce process. It also gives both of you more control over the outcome–even if you have to make compromises. Other types of divorce will give a judge the power to make those decisions for you. In those cases, neither of you gets a say in how the situation plays out.
It’s important to look at all of your options and choose the right one for your unique situation. Take a look below at the alternatives to uncontested divorce.
Types of Uncontested Divorces
Lawyer vs No Lawyer Uncontested Divorces
Some uncontested divorces involve lawyers while others do not. It all depends on you and your spouse’s ability to come to an agreement on the terms of your divorce. If it’s too difficult or is impossible to do without arguing, you may need to hire divorce lawyers to help you both come to a final agreement. Keep in mind that if you hire a lawyer, you cannot simply hire one lawyer to “represent the relationship;” they will only represent a single person. Therefore, you would both need your own lawyers.
However, if you truly believe you can come to a fair agreement with your spouse on your own, this may be more ideal for you. It would take a great emotional toll, and you would have to research or be knowledgeable of the state’s laws and do a lot of preparation on your own. But it is still possible for some people and would be much cheaper since you would not have to pay lawyers to do the work for you. The good thing is, you can always start out this way and hire lawyers later if it gets to be too complicated or difficult to handle on your own.
Simple Divorce
This is a subtype of uncontested divorce. It involves a similar process but requires less paperwork and deliberation. It is actually faster and cheaper than a normal uncontested divorce–which is already the quickest and cheapest type–but is only feasible for certain relationships. A couple who acquires a simple divorce will typically have limited assets–no children, debt, property, etc.–which is what makes it so quick and cheap. If you’re involved in a more complicated situation, you may want to look at your other options.
At-fault vs No-fault Divorce
These categories are actually non-specific to uncontested divorces; they are applicable to both uncontested and contested divorces. The way they play out in each type of divorce, however, is what makes the difference.
In a no-fault uncontested divorce, both parties sign an agreement and never visit a courtroom in the process. In an at-fault uncontested divorce, the only person who goes to court is the spouse testifying. “At-fault” means one of the spouses has violated one or more grounds for divorce, so the other will have to testify against them for that reason. It may seem counterintuitive, but the reason this is still considered uncontested is that the spouse who is at fault has realized their wrongdoings, admitted to them, and agreed to end their marriage based on their actions. They have also agreed not to show up to the court hearing so that the testimony goes unopposed. The very purpose of an uncontested divorce is to make things run smoothly and peacefully, so both spouses will be on the same page if this is the course of action they decide to take.
Alternatives to Uncontested Divorce:
Counseling
This is the best alternative to uncontested divorce if you and your spouse aren’t quite ready to give up on your marriage. Even if you do decide to divorce or separate, counseling is still a great option–especially if you have kids or another kind of connection–to keep you and your ex on good, or at least neutral, terms. Many people may look down on this option or disregard it due to preconceived notions or bad experiences. The good thing is, there’s no harm in trying if you never have before. And if you have, but it didn’t seem to work, it’s likely that you simply had the wrong therapist.
It can take some time to find the right therapist, but it is possible. And once you do, it can really make a difference. For some, it may take longer than others, but it’s bound to help in one way or another. It can only help, however, if you both work hard for it. Lying or holding back during sessions can have a large impact on its effectiveness, so it’s imperative that you tell the truth and fully express your thoughts.
Separation
Since legal separations are not recognized in the state of South Carolina, you have two other options: simply living apart from your spouse or obtaining an Order of Separate Maintenance and Support (OSMS). If you simply live apart from your spouse, no legal action will be taken toward asset division or child custody. Nothing will ever be completely settled or divided, and custody will remain the same. It allows couples to get organized and gather themselves before actually getting divorced. This option is commonly used at the beginning stages of a no-fault divorce since you have to live apart from your spouse for at least one year before you can legally terminate your marriage. In addition, it is often used in combination with Orders of Separate Maintenance and Support.
An Order of Separate Maintenance and Support will initially entail temporary legal arrangements for your division of assets, child custody and visitation, and alimony. An OSMS requires that both parties live apart (with no specific time requirement) or that fault grounds be proven. Once the case is resolved by a judge, a final agreement will go into effect and last more permanently. It will not, however, cover the issue of divorce and will not terminate your marriage. Therefore, if you decide to go through with a more long-term separation, you will not be able to remarry until you get an actual divorce. But it will give you more time to work things back out in your relationship, to fully agree upon getting a divorce, or to gather the financials a divorce demands while simultaneously receiving the legal benefits of both marriage and divorce, similar to that of a legal separation.
Annulment
While a divorce terminates your marriage but is still kept documented, an annulment makes it as if your marriage never existed. Annulments are the least likely alternative because only some people are eligible for them, and it takes evidence to prove your eligibility. This proof is meant to show that the marriage should never have taken place to begin with. For this reason, annulments are typically granted soon after a marriage occurs–not years later. A judge might find a couple eligible if coercion, fraud, or incest took place, or if one or both parties were mentally incompetent or underage and, therefore, could not consent to the marriage. Consummation and cohabitation are also factors in your eligibility, despite your reason for getting the annulment.
Mediation
During mediation, a couple will work with a mediator to help them come to an agreement for their divorce. This mediator may or may not be a lawyer but should know the ins and outs of divorce as well as family law. They should also be neutral and unbiased. It is crucial you choose an unbiased and knowledgeable mediator; otherwise, things can go south quickly. If they’re biased, you could end up on the short side of the stick with unfavorable terms in the agreement. If they don’t know what they’re doing, they can make things worse by failing to negotiate properly or by poorly drafting an agreement. But if they are, in fact, good at what they do, you can end up with a more favorable agreement than you and your spouse could have come up with on your own.
In addition to using a mediator, spouses should consult their lawyers throughout the process. This makes mediations more costly than an uncontested divorce, but they are still cheaper than other options.
If you or someone you know are considering divorce but would like to learn more about your options, feel free to contact Christine Howard and her team at (864) 282-8575 or info@christinehoward.com. They can discuss alternatives to uncontested divorce with you and help you figure out the best way to move forward.
Sources:
“No-Fault vs. Fault vs. Contested vs. Uncontested Divorce.” Davis Divorce Law, 24 July, 2018, https://padivorce.com/no-fault-vs-fault-vs-contested-vs-uncontested-divorce/.
South Carolina Bar. “Legal Separation.” South Carolina Bar, https://www.scbar.org/public/get-legal-help/common-legal-topics/legal-separation/.