The Advantages of Uncontested Divorce
- January 10, 2017
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It’s no secret that going through a divorce can be a painful, stressful and sometimes, drawn-out process. It is also one of the most difficult decisions people make over the course of their lives. However, there is a way to make the process slightly less difficult, and certainly shorter, particularly if the parties remain amicable. Arizona state law will not Order a divorce in less than 60 days, and the best way to streamline the process in that time frame can be through an uncontested divorce.
Time is Money
There are several advantages to pursuing an uncontested divorce. For one, the shorter the process of divorce is, the less money it will cost in attorney’s fees. A contested divorce my require mediation and multiple hearings and even trial, until a final divorce Decree is entered by the Court. Time spent in court always increases fees, and generally requires the presence of both parties; this means it is necessary for parties to often take time off from work and/or their families to deal with this process. Naturally, an uncontested divorce can cost significantly less than a contested divorce because the likelihood of contested proceedings diminishes; in fact, if the parties proceed through a default-proceeding, only one hearing is generally necessary at the end when the Court looks to approve the final proposed Decree of Dissolution.
Marital Separation Agreements in Uncontested Divorce
One aspect of uncontested divorces that makes them more streamlined is a Marital Separation Agreement (MSA). An MSA is an agreement between the parties which equitably divides assets and debts, as well as identifies any parenting time and legal decision making authority of the parties when minor children are involved. It can even address child support orders, too. MSAs are generally drafted after a party files the initial Petition for Dissolution, and it is served upon the responding party (“Respondent”). Once personally served, the dissolution matter is effective, and the Respondent has 20 days to file a response to the petition. But if the parties want to proceed with an MSA, the Respondent may waive his or her right to respond in order to negotiate the MSA during the initial response period.
While negotiating the MSA, the Respondent may choose whether or not to acquire legal representation. The parties will work together to come to an amicable resolution as to the details of the dissolution in the MSA. If the terms and provisions are mutually agreed upon, both parties will sign the MSA; having done so, they will be bound by the terms and provisions of the MSA even before the final Decree of Dissolution is entered by the Court (after 60 days from the date of service of the Petition). The MSA is a contract and can be enforced either under family or contractually-based law. Often parties request an MSA during an uncontested divorce because, once they reach such an agreement, that contract will be incorporated into the final divorce decree. It shortens the time and efforts needed in preparing a final divorce decree, and it binds the parties much more quickly than waiting it out in a long, drawn-out process via a contested divorce proceeding.
Often, when parties agree to proceed via an MSA, and the Respondent agrees to waive his or her right to respond, that means that the parties will proceed via “Default.” Once the MSA is signed, and after the 20-day response-deadline expires, a Notice and Application of Default must be filed and mailed to the Respondent. Then the Court will allow the Respondent an additional 10 days to respond to the initial Petition (or to continue negotiating the MSA if they have yet to do so). Following that 10-day period, if no response is filed, the petitioner requests a default hearing in order for the Court to approve the parties final Default Decree of Dissolution. The court will set a default hearing 60 days from the date of filing/service of the Petition (in order to meet the 60-day legal requirement for dissolutions). The Respondent should have notice of the final default decree (which should incorporate the MSA); though, only the Petitioner and his or her attorney are required to attend the default hearing.
Once an MSA is approved and executed by the parties, it is provided alongside a Default Decree of Dissolution of Marriage to the Court at the time of a default hearing. This default hearing generally concludes the process of the uncontested divorce, as the Court will most likely give their approval of the Default Decree and MSA. All of these processes are enumerated in Arizona Revised Statutes Title 25 Chapter 3 Article 2.
Consent Decree v. Default Decree
However, if at any point in this process the parties cannot agree to the terms of the MSA, or if in the first 20 to 30 days the respondent files a response, the divorce becomes contested. That response could trigger mediation, hearings, and a full trial if the parties cannot come to an agreement. Throughout that process, an MSA can still be negotiated and incorporated into a Consent Decree of Dissolution (rather than a Default Decree) upon final settlement between the parties. If an MSA cannot be agreed upon or is not utilized, the parties should continue to work towards settlement in order to finalize their divorce and utilize a Consent Decree; if settlement can be reached without the MSA, the Decree will likely require a much more in-depth account of the distribution of assets and debts, as well as any issues regarding minor children, which could require additional time and attorney’s fees to accomplish. This would otherwise be avoided if an MSA is utilized and/or an uncontested proceeding is followed.
Legal Jargon and Its Place in an Uncontested Divorce
Some couples considering an uncontested divorce may think that they can accomplish the process simply by filling out the forms available on the Court’s website. While this may result in dissolution, the truth is that having an MSA or negotiated Consent Decree can be very important because – if negotiated without representation – several provisions and terms are often left out of Court forms which otherwise would be very necessary in protecting a party’s future rights in the event of a post-decree conflict. And one very important purpose of an MSA or Consent Decree is not only to divide the marital assets and debts, including business valuation and community property, but possibly determine the provisions regarding child custody, where specificity of terms is preferred. Ultimately, these documents contain the “legal jargon” that is often necessary in protecting the parties in the future that they themselves are not familiar with.
We generally believe that family law procedure is often designed to be reactive; in other words, it’s often necessary to prepare for the eventuality of future conflict while in the present, and in doing so attorneys can help clients avoid the contemplation of future post-decree litigation, the rules for which can be found in A.R.S. §25-327. Even in a simple divorce, there are rights and liabilities that both parties need to be aware of just in case certain situations arise (i.e. custody matters, tax and or financial considerations, division of assets and debts requiring full and fair disclosure). Specificity of terms can also help make spousal maintenance and/or child support simpler if financial situations change in the future for one party or the other. No one can predict whether or not this will be necessary, but it is advisable to have the right systems in place at the time of the divorce.
Please note that the preceding information is informational only, and it is not intended to be legal advice. If you need assistance with a friendly divorce, call the experienced Arizona divorce attorneys at Harlow Spanier & Heckele to schedule a consult at (520) 369-4274 or email [email protected]