Navigating an Uncontested Divorce
You and your spouse have decided to divorce, and you would like to do so amicably, without unnecessary arguments or costly legal battles. This is a great option, especially when children are involved, as you and your spouse are likely to be interacting on some level for many years to come.
Divorce is typically a difficult process, but it does not have to mean war. An uncontested divorce is one in which a case is filed with an agreement already in place as to the division of the parties’ assets and obligations, and as to the custody and financial support of their minor children, if applicable. The paperwork will be signed by the parties in a prompt fashion, and the case can then be finalized by the court at a short hearing (or in some cases, by mailing of the documents to the judge and no hearing at all) as early as 31 days after filing.
An important element of an uncontested divorce is knowledge. Both parties need to know and understand the nature and the value of their marital property, including real property, vehicles, accounts, and their debts, such as mortgage, credit debt, and student loans. Marital property and debt only includes what was acquired during the marriage. Separate property or debt includes what a spouse had prior to the marriage, such as a paid-off car or property received by one spouse during the marriage through inheritance or gift. Separate property is not marital property and does not need to be shared with the other spouse in a divorce.
Spouses attempting to negotiate a divorce agreement should share information about marital and separate property, which can be done quite easily through open discussion and by providing each other with tax returns, account statements and appraisals. When the parties feel comfortable that all information has been shared, they should then discuss a fair division of the property and debts. Under Georgia law, the parties’ written agreement as to the division of marital property and debt will be approved by the court.
With respect to child custody, Georgia law requires that a parenting plan be entered, as well as a child support order, even if the parties agree for no child support to be paid. These are form-based documents which contain a number of required details. When discussing a parenting plan, the parties should address legal custody, which determines the ability to access the child’s educational and medical information, as well make decisions for that child. The parties should decide how disputes between them will be resolved in four (4) major areas of decision-making that often arise concerning children: (1) religion; (2) health; (3) education; and (4) extracurricular activities. Often the agreement is to designate one parent or the other as the tie-breaker on a given major issue.
The parties should agree upon a specific parenting time schedule, even if they plan to be flexible over time. A parenting time schedule should provide for a “standard” schedule, typically in place during the school year, and a “holiday” schedule, typically in place for major holidays and summer vacations. The parties may agree to vary the schedule on a given occasion, such as by swapping holidays one year. In the absence of an agreement, they can rely on the parenting plan’s schedule in making plans for the child and themselves, which greatly reduces the risk of conflict in the future.
Child support must be addressed in accordance with a child support worksheet, which determines a presumptive amount of child support to be paid by the non-primary custodial parent to the primary custodial parent. The worksheet will require each party’s gross monthly income (before taxes are deducted), as well as determine what party pays for the child’s insurance, day care, and any other significant expenses. The presumptive child support amount can then be negotiated, with any agreed-upon change (known as a “deviation”) to be documented on the worksheet. Under Georgia law, the parties’ agreement as to custody and child support is subject to the court’s review for compliance with the law and a determination that the agreement is in the children’s best interest.
There are a number of documents required to prepare, file and resolve a divorce case, even one that is uncontested. Parties may carry out this task without the assistance of a lawyer, but are at a greater risk of omitting significant terms from their agreement, resulting in documents that are not approved by the court or that lead to confusion and conflict in the future. It is always recommended that parties to a divorce, even an uncontested one, each seek the advice of independent counsel before executing legal documents. If you’d like meet with an experienced family law attorney to discuss your uncontested divorce and ideas for an agreement, please contact the law firm of Hulsey, Oliver & Mahar, LLP to schedule an appointment.