Many people call our office and tell us that they are involved in an “uncontested divorce.” They say that they have been separated for 1 year (requirement in North Carolina for a divorce) and they wish to be divorced. They then typically tell us that they still have a house that they own in both names a car that is in one persons name that is driven by the other and two minor children for which they share custody. Additionally neither party is paying child support to the other and they share the child’s expenses.
In this typical scenario, the parties are mistaking an unsettled marriage for an uncontested divorce.
To the untrained eye this situation can be solved by letting one of the parties pay the filing fee and filing a divorce complaint that will be followed up by a motion for summary judgment and finally the decree of absolute divorce from a judge in the proper jurisdiction. To the couple that has just achieved what they thought was the end of their marital problems, this is just the beginning of more complicated ones.
It is true that the parties in this situation may not be contesting the fact that they want the divorce. In fact, in North Carolina only one party needs to request the divorce for it to be granted. However, what is left over is a huge mess that cannot easily be sorted out after the divorce is final. Husbands and wives that do not preserve the right to equitable distribution of their property prior to a decree of absolute divorce forfeit that right upon entry of the divorce decree. This means that there is no legal remedy available to them, or at a minimum no easy way, for the parties to separate their property. There is no way for the divorced couple to easily require the other to remove their name from the marital home. There is no easy way to get the car that has been in the possession of one of the parties back into the hands of the one whose name is on the loan.
Divorces that occur before the marital property of the parties is divided causes a great deal of harm and stress to the couple after they have divorced. Certain rights are lost once the divorce decree is entered that may cause the parties to end up in financial ruin.
The rule of thumb is that unless you have already divided your assets and created an agreement through court or paper for custody and support of the children then a divorce decree may be untimely and dangerous. There is no requirement that a person wait for custody to be determined prior to divorce. However, it is never best to leave these things to the whims of the person that you are divorcing. Child custody becomes infinitely more difficult to decide once the divorced spouse decides to move on to another.
As a family law attorney I suggest to all of my clients that an uncontested divorce is simply the realization that you the spouses no longer need to be together. That was typically the easy part. However, it is neglectful to leave the marriage without addressing child custody and property issues in the proper manner. Child custody agreements allow the parties to have rules to govern the times when they cannot otherwise agree. Child support agreements ensure that the children of the marriage do not suffer as a result of the break up of the mother and father. Finally, the property division allows both parties to properly move forward without entanglements from the prior marriage that will hamper their progress into a new life separated from the former spouse.
To that end, make sure that when you are thinking you have an “uncontested divorce” that you are not leaving behind an unsettled marriage. Meek Law Firm can help you get through both. We will help you make sure that you have taken a comprehensive look at the divorce and how it will affect your property rights, child custody and support. Without all of these things in place, filing an uncontested divorce may simply lead to a great deal of problems in the future.