The Myth of “Uncontested Divorce”

This post’s title is a bit of an overstatement, and so I want to acknowledge that right at the start. There are a few people who enter into the process of separating or ending a marriage where they are in agreement on all matters. But, my observation time and again is that a divorce involves the tearing apart of two people who have been joined in some way that defies understanding, and that nearly always means conflict. After awhile, an “uncontested divorce” appears mythical. Despite the prevalence of contention when people separate, mediation prior to litigation offers the best chance of minimizing the conflict and the damage.

As a practicing attorney, I have fielded many calls by people asking how much for an “uncontested divorce”. After giving a dollar amount for a truly uncontested divorce, I spend time talking about the dozen different categories covered in the typical separation agreement. Their confidence in an easy, “uncontested” divorce diminishes as they recognize points that have not been discussed and where contention is likely to occur.

I then have to explain the idea of a “refundable retainer” which turns out to be much higher than the uncontested divorce flat fee. Part of that explanation involves hourly billing and the fact that some attorneys inadvertently or purposefully increase the conflict resulting in higher costs. The sad fact is that the single best predictor of the cost of a divorce, in my experience, is whom each party choses as their attorney. 

There is an alternative to this litigator roulette. If both spouses are willing to engage in mediation prior to filing for divorce and perhaps even before retaining a lawyer, they are entering into the most likely scenario of a low-cost and relatively uncontested divorce. They may even emerge on the other side of mediation deciding that they actually are not at that irreconcilable place in their relationship after all. But, they at least experience working through tough issues with relative civility and respect.

In my next post I will give an overview of this “mediation, not litigation” model to arrive at an uncontested divorce.