What is the Difference Between Uncontested Divorce and Mediation?
What is an Uncontested Divorce?
An uncontested divorce allows you and your spouse to settle divorce issues, such as division of assets and child custody, outside of the court. This makes the process cheaper and quicker than most 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. It gives both of you more control over the outcome while other types of divorce will give a judge the power to make those decisions for you.
What is Mediation?
Mediation is similar to an uncontested divorce except it involves a mediator. This mediator may or may not be a lawyer, but they can help you and your spouse come to an agreement without having to do so on your own or through lawyers. The mediator you choose should have extensive knowledge of divorce and family law, and they should be unbiased. Their role is not to give advice or speak on either party’s behalf but to make sure the conversation about the agreement stays on topic and doesn’t get out of hand. Both parties will then be able to make more informed decisions and steer clear of frequent arguing.
If the mediator sees fit that a couple would do better with a different type of divorce due to disagreements, they can discontinue mediation and refer the couple elsewhere. Or, if issues arise within specific areas that someone else would be better suited to handle, such as financial problems, the mediator can refer you out to another professional to discuss that certain issue. But they would continue to mediate other areas of the divorce.
In addition to a mediator, spouses should consult their lawyers or attorneys throughout the process–from the very beginning to the day they sign the agreement. Each lawyer or attorney will check if the agreement is in their client’s favor. They will make sure it is as fair and well-written as possible at each step of the process by searching for any flaws or holes within the agreement.
How Does Each Process Work?
Before the divorce process starts, you will have to decide whether to file for an at-fault or no-fault divorce. In an at-fault divorce, there are specific grounds you have to file under that require definitive proof of your allegations. In the state of South Carolina, you can file under one of the following grounds: adultery, physical cruelty, habitual drunkenness/narcotics abuse, and desertion. If you do not have evidence of proof for one of the grounds, you will likely have to proceed with a no-fault divorce. Typically, though, no-fault divorces are filed when nobody is at fault and a couple just wants to end their marriage; sometimes this is mutual, other times it is not. If you decide to file for a no-fault divorce, you and your partner will have to live apart for at least one year and provide proof of separation before you can proceed with the divorce.
Uncontested Divorce
First, you or your spouse will file for divorce. From there, the two of you can discuss whether you would like to try and create a divorce settlement agreement between yourselves or have lawyers involved. After that, you will work to come to a fair agreement that will suit you both equally. That agreement will then be sent to a judge for review. This does not mean you go to court; the paperwork will simply be sent to a judge. That judge will then decide whether to approve or deny your agreement based on the terms you provided.
If a judge approves your agreement, your case will be sealed, your marriage will officially be terminated, and your agreement will go into effect. At this point, it will be difficult for you or a judge to make any changes to the agreement, so it is important that you, your spouse, and any lawyers make sure the agreement is foolproof and suits both parties as equally as possible. On the other hand, if the judge denies the agreement, you will need to make changes. The typical reason agreements get denied is issues with child custody.
Mediation
Mediation also starts with filing for divorce. Afterward, you connect with a mediator, who guides your discussions about the divorce settlement agreement. They will keep you and your spouse on track and help you avoid getting into arguments. After each mediation session, you will want to discuss any changes made to the agreement with your lawyer or attorney. They can help you determine what seems fair and what doesn’t since your mediator cannot provide legal advice. They can also make sure there aren’t any loopholes or confusing statements within the agreement.
Once you, your spouse, and your mediator come up with a final agreement, you should have your lawyer or attorney look it over one last time to make sure there aren’t any inconsistencies before you sign. Once they give you the go-ahead, you can sign the agreement. After the agreement is signed by both parties, it will be sent to a judge for review. From there, the process will continue just as an uncontested divorce would.
When Should I Choose Uncontested Divorce as Opposed to Mediation and Vice Versa?
Uncontested Divorce
Within an uncontested divorce, you have the choice to settle your case with or without lawyers. If you attempt to do it yourself, the process may take longer, and you will be doing most of the work yourself. You will have to research divorce and family law, understand how to apply it to your case, and then come up with a settlement–without the help of a lawyer or mediator. But most people do not want to do all of the work themselves and will hire a lawyer to manage the case on their behalf. The lawyer then does all of the work for you and handles the legal side of things with your input.
In the case that you and your spouse handle the entire case without any lawyers, this would be the cheapest option. However, it will take a lot more time unless you and/or your spouse already know divorce and family law well. If you go the route with lawyers, this will take less time than a do-it-yourself divorce but will cost a lot more. In comparison to mediation, either course you take within an uncontested divorce will likely be more time-consuming than mediation. However, with an uncontested divorce, you can be confident, knowing a lawyer is constantly working directly by your side.
Mediation
With mediation, spouses settle disagreements in the presence of a mediator. That mediator will help conversations move along smoothly by keeping everyone on track. Since everyone is in the same room, at the same time, they receive the same information all at once, which can make the process go by quicker than an uncontested divorce. In uncontested divorces, meetings with lawyers typically occur separately; therefore, each spouse receives different information, from different lawyers, at different times. This can make it take longer for each issue to be resolved because lawyers have to send drafts back and forth throughout the process.
Both options are going to be more cost-effective than other types of divorce, but it will depend on your situation whether mediation or uncontested divorce is cheaper for you. Mediators typically charge less than lawyers per hour, and you’re only paying one person as opposed to two with an uncontested divorce. In addition, it is more direct, which can allow for a quicker process. But not always. Although information can circulate quicker during mediation, the amount of time it takes to resolve each issue can affect the overall timeline. If it takes you and your spouse longer to come to agreements about your issues, you may end up meeting with your mediator more often than you would with lawyers during an uncontested divorce. As a result, this can make mediation more costly in the long run, even though mediators cost less per hour.
Bottom Line
In the end, the process that will work better for you will depend on the relationship you have with your spouse and how much time, effort, and money you are both willing to spend.
When Should I Look Into Other Options?
Neither option will work great for couples with a power imbalance; these cases can end up with poor negotiations as well as unfair agreements. This is typically true of those filing for an at-fault divorce. If abuse or neglect was involved in any way, you should look to a contested divorce for help. An uncontested divorce that involves lawyers might still be a practical option in this situation, but it all depends on how good of a lawyer you have and whether or not you will be speaking directly with your spouse. You don’t want to wind up getting the short end of the stick, so it’s best to choose an option that can accommodate your wants and needs the best.
If you would like to discuss your options further, feel free to contact Christine Howard and her team by phone (864) 282-8575 or email info@christinehoward.com. They can help you figure out the best route to take if you are still unsure of where to start, or they can discuss the next steps within the current route you are on.
Sources:
Collins, Forrest. “Picking the Right Process – Uncontested Divorce vs. Kitchen Table Mediation.” Forrest Collins, P.C., 22 Sept. 2015, https://www.mediatingattorney.com/picking-the-right-process-uncontested-divorce-vs-kitchen-table-mediation/#:~:text=The%20main%20difference%20between%20these,participates%20in%20the%20uncontested%20divorce.