Uncontested Divorce


The truth is some divorces are much more straightforward than others. This can be because of the financial situation of the parties, the amicability of the parties, or other forces at work. Whether your divorce is truly uncontested is not a question of if you both agree to a divorce.

There are two questions to be answered:

(1) Do you agree on every single issue regarding property and custody, and

(2) would a judge approve of that agreement? Learn more below.

MYTH 1: If your spouse agrees to get divorced, your case is “uncontested.” FALSE.

Agreeing to divorce is different than agreeing on all the specifics of the divorce.

A typical divorce agreement is 15 pages long and covers every single aspect of “dissolving the bonds of matrimony.”

You see, when you get married, a whole bunch of legal relationships are created between you and your spouse regarding rights to each other’s property, and if you have kids, your obligations and responsibilities to those kids.​

In reality, about 50% of married couples who believe they have an uncontested divorce actually don’t.

Most often, difficulties arise related to a mortgage, car financing, or joint credit card debt.

For example, the parties may agree that wife will take the car. The problem, however, is that both husband and wife are on the car note. While husband may be eager to give the wife the car to avoid a contested case, doing so without requiring her to refinance could lead to a major hit on his credit report. Wife, for her part, may not be able to refinance because of her current income or debt.​

MYTH 2: As long as you and your spouse agree on everything, the judge will finalize your divorce. FALSE.</strong><br />It is true that the most efficient, inexpensive divorces are finished by agreement of the parties. The judge, however, will not accept just any agreement of the parties. In fact, the judge will look very closely at your agreement to make sure that it is not fundamentally unfair.<br />Commonly, judges will reject settlements that don’t include child support or where one spouse is waiving their right to a substantial retirement account.</p>
<p><strong bis_size="{"x":0,"y":0,"w":0,"h":0,"abs_x":268,"abs_y":30}">MYTH 3: If your name is not on the property, you have no claim to it. FALSE.</strong><br />Illinois divorce law says that in a divorce all “marital” property is to be divided equitably. What does that mean??<br />Let’s break it down. “Marital” means any property that was acquired during the marriage (the biggest exceptions are gifts and inheritance).<br />There is no requirement that this property has to be titled in both husband and wife’s name.<br />So virtually all property acquired during the marriage is to be divided equitably. And as a general rule, equitably usually means 50-50.<br />So that bank account without your name on it that has 5-figures of cash? Could be half yours. That 3 year-old car worth $15k? Could be half yours. The house with just your spouse’s name on it? Half yours.</p>
<p><strong bis_size="{"x":0,"y":0,"w":0,"h":0,"abs_x":268,"abs_y":30}">MYTH 4: Child support is optional. FALSE. (See MYTH 2 above)</strong><br />“My wife and I agree that there will be no child support.” We hear this daily. It is a common misunderstanding that the parties can agree to waive child support. This is incorrect.<br />Illinois divorce law requires that child support be paid pursuant to certain guidelines. The only time the guidelines don’t need to be followed is if the judge determines it would be appropriate.<br />So, when we will the judge decide that no child support is ok? Usually in cases where each party makes a similar income, has similar expenses, and spends a similar amount of time with the child.<br />Simply agreeing with your spouse that there will not be child support is not enough.</p>
<p><strong bis_size="{"x":0,"y":0,"w":0,"h":0,"abs_x":268,"abs_y":30}">MYTH 5: You can’t undo a divorce. FALSE.</strong><br />Just because a judge signs your divorce agreement and says the magic words, doesn’t mean you are on completely safe ground. Divorce, like any other court process, is controlled by very strict rules of procedure.<br />If you don’t follow that procedure, your spouse could actually undo your divorce through a request called a “Petition to Vacate.” Most often this occurs when a party has “buyer’s remorse” and starts to feel like they got the short end of the stick. Your spouse’s attorney will scrutinize whether or not you followed the correct procedure, and if you didn’t, they will have strong argument for the judge to reverse the divorce.</p>
<p><strong bis_size="{"x":0,"y":0,"w":0,"h":0,"abs_x":268,"abs_y":30}">MYTH 6: The cost of an attorney is always unpredictable. FALSE.</strong><br />Hiring an attorney, like hiring any other service provider (accountant, doctor, therapist, etc.), requires a bit of research and planning. You need to make sure that whoever you hire is a good fit for your situation. It wouldn’t make sense, for example, for a fire fighter with a straightforward divorce to hire a lawyer that specializes in high net worth, custody battles.<br />How much your attorney will cost depends on the law firm’s billing method. Many firms bill by the hour and require an upfront retainer. This retainer, which is held in a separate bank account until earned, will typically range from $2000-$5000. The firm will then charge you between $250 and $500 per hour in 6 minute increments for doing anything on your case. For example, a three minute phone call with your lawyer could cost you between $25 and $50 dollars. Likewise, sending an email to your lawyer could cost you $25-$50 as your lawyer will charge for the time it took to read the email. Clearly, under this billing method, the cost of a simple matter can quickly skyrocket.<br />The other, more affordable, option is flat-fee billing. This billing method offers more certainty and transparency than the hourly/retainer model.<br />With flat-fee billing you are given a price quote for a specific legal service. For example, if you and your spouse agree on the terms of your divorce, the firm will determine the complexity of the divorce papers required, and give you a quote for that work.<br />Once you enter into a flat-fee billing agreement you know exactly what are paying for and what you will get. There are zero billing surprises and you don’t have to make strategic decisions based on cost.</p>

MYTH 1: If your spouse agrees to get divorced, your case is “uncontested.” FALSE.

Agreeing to divorce is different than agreeing on all the specifics of the divorce. A typical divorce agreement is 15 pages long and covers every single aspect of “dissolving the bonds of matrimony.” You see, when you get married, a whole bunch of legal relationships are created between you and your spouse regarding rights to each other’s property, and if you have kids, your obligations and responsibilities to those kids.

In reality, about 50% of married couples who believe they have an uncontested divorce actually don’t. Most often, difficulties arise related to a mortgage, car financing, or joint credit card debt.
For example, the parties may agree that wife will take the car. The problem, however, is that both husband and wife are on the car note. While husband may be eager to give the wife the car to avoid a contested case, doing so without requiring her to refinance could lead to a major hit on his credit report. Wife, for her part, may not be able to refinance because of her current income or debt.

MYTH 2: As long as you and your spouse agree on everything, the judge will finalize your divorce. FALSE.
It is true that the most efficient, inexpensive divorces are finished by agreement of the parties. The judge, however, will not accept just any agreement of the parties. In fact, the judge will look very closely at your agreement to make sure that it is not fundamentally unfair.
Commonly, judges will reject settlements that don’t include child support or where one spouse is waiving their right to a substantial retirement account.

MYTH 3: If your name is not on the property, you have no claim to it. FALSE.
Illinois divorce law says that in a divorce all “marital” property is to be divided equitably. What does that mean??
Let’s break it down. “Marital” means any property that was acquired during the marriage (the biggest exceptions are gifts and inheritance).
There is no requirement that this property has to be titled in both husband and wife’s name.
So virtually all property acquired during the marriage is to be divided equitably. And as a general rule, equitably usually means 50-50.
So that bank account without your name on it that has 5-figures of cash? Could be half yours. That 3 year-old car worth $15k? Could be half yours. The house with just your spouse’s name on it? Half yours.

MYTH 4: Child support is optional. FALSE. (See MYTH 2 above)
“My wife and I agree that there will be no child support.” We hear this daily. It is a common misunderstanding that the parties can agree to waive child support. This is incorrect.
Illinois divorce law requires that child support be paid pursuant to certain guidelines. The only time the guidelines don’t need to be followed is if the judge determines it would be appropriate.
So, when we will the judge decide that no child support is ok? Usually in cases where each party makes a similar income, has similar expenses, and spends a similar amount of time with the child.
Simply agreeing with your spouse that there will not be child support is not enough.

MYTH 5: You can’t undo a divorce. FALSE.
Just because a judge signs your divorce agreement and says the magic words, doesn’t mean you are on completely safe ground. Divorce, like any other court process, is controlled by very strict rules of procedure.
If you don’t follow that procedure, your spouse could actually undo your divorce through a request called a “Petition to Vacate.” Most often this occurs when a party has “buyer’s remorse” and starts to feel like they got the short end of the stick. Your spouse’s attorney will scrutinize whether or not you followed the correct procedure, and if you didn’t, they will have strong argument for the judge to reverse the divorce.

MYTH 6: The cost of an attorney is always unpredictable. FALSE.
Hiring an attorney, like hiring any other service provider (accountant, doctor, therapist, etc.), requires a bit of research and planning. You need to make sure that whoever you hire is a good fit for your situation. It wouldn’t make sense, for example, for a fire fighter with a straightforward divorce to hire a lawyer that specializes in high net worth, custody battles.
How much your attorney will cost depends on the law firm’s billing method. Many firms bill by the hour and require an upfront retainer. This retainer, which is held in a separate bank account until earned, will typically range from $2000-$5000. The firm will then charge you between $250 and $500 per hour in 6 minute increments for doing anything on your case. For example, a three minute phone call with your lawyer could cost you between $25 and $50 dollars. Likewise, sending an email to your lawyer could cost you $25-$50 as your lawyer will charge for the time it took to read the email. Clearly, under this billing method, the cost of a simple matter can quickly skyrocket.
The other, more affordable, option is flat-fee billing. This billing method offers more certainty and transparency than the hourly/retainer model.
With flat-fee billing you are given a price quote for a specific legal service. For example, if you and your spouse agree on the terms of your divorce, the firm will determine the complexity of the divorce papers required, and give you a quote for that work.
Once you enter into a flat-fee billing agreement you know exactly what are paying for and what you will get. There are zero billing surprises and you don’t have to make strategic decisions based on cost.

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