By: Jimmy Grant
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Which Process Is Best for You: Uncontested Divorce or Mediation?
Divorce is ranked as the fourth most stressful life event according to The American Institute of Stress. The only life event that ranks higher is the death of a spouse. This is true even if both spouses agree that divorcing is in their best interest. Important decisions must be made at a time when emotions run high. Who gets to keep the family home? How will the assets be divided? What will happen to the children? How will the debts be divided?
Many divorces are contentious and wring the last vestige of civility from both parties. Other couples are amicable and end the process able to at least communicate with each other, which is important if there are minor children involved. There are two divorce procedures that may help alleviate the contention and thereby minimize the stress: an uncontested divorce or a divorce following mediation.
What is An Uncontested Divorce?
In an uncontested divorce, both parties agree on how all issues should be resolved. This includes:
- Division of assets.
- Distribution of debts.
- Child custody and parenting time.
- Child support.
- Whether one party will pay spousal support to the other.
- Whether the wife will take back her maiden name.
The process begins with the parties coming to an agreement regarding all of the above-referenced issues, and any other matters that are important to the parties. This process can be accomplished through the assistance of a knowledge and experienced uncontested divorce attorney, who can guide the parties through each issue. The parties then solidify their agreement through a written Settlement Agreement which provides details of how each of the issues has been or will be resolved between the parties. Both spouses initial, sign, date and notarize the Settlement Agreement. Next, the parties file a Complaint for Divorce, Acknowledgment of Service and Consent to 31-Day Hearing in the Superior Court where either the husband or wife lives.
After 31 days has passed from the date of filing, the Court can either sign off on the parties’ divorce by filing a Final Judgment & Decree of Divorce or schedule a final hearing. If the Court schedules a final hearing, only one party needs to appear. Following a brief hearing where the Court asks approximately ten questions, the Settlement Agreement is incorporated into the court’s Final Judgment & Decree of Divorce and becomes legally binding. Each party must abide by its terms or risk being held in contempt of court.
How Mediation Works
Mediation is a process where both spouses meet with an unbiased third party who helps them resolve their issues collectively. Whether the spouses include their attorneys in the mediation meeting or meetings is a personal choice and there is no legal requirement one way or the other. The goal of mediation is for the spouses to resolve their issues and prepare their own Settlement Agreement.
If mediation works, the Settlement Agreement is filed with the court, as with an uncontested divorce. The court reviews it and in almost all cases, approves it. The Settlement Agreement is incorporated into the court’s Final Judgment & Decree of Divorce and becomes legally binding. Each party must abide by its terms or risk being held in contempt of court.
Confidentiality and the Mediator’s Role
The role of the mediator is to guide the discussion and give suggestions. Mediators are not supposed to give legal advice even though some mediators may be attorneys. They may point out pros and cons of various solutions and point out resolutions that are in the best interest of the children. Mediators are only to make suggestions and not to act as an advocate for any particular solution or as an advocate for either party.
The process is confidential and, if mediation breaks down and the parties end up battling in court, the mediator may not be called as a witness for anything that was discussed in the mediation meetings. There are exceptions to confidentiality. For example, if the mediator has learned of instances of child abuse, mediators are mandatory reporters and this one issue will not remain confidential.
Benefits of Mediation
- Mediation reduces stress since the focus is not on arguing, but in coming to solutions over disagreements.
- It is faster and less expensive than litigation since there is less paperwork and fewer court appearances.
- Reduces future litigation since the parties are more likely to comply with their own agreement.
- Confidentiality keeps disputes over issues like child care and finances private.
Downsides to Mediation
- If the parties cannot agree on one or more term during mediation, they will still have to go the traditional divorce route with court intervention, filing documents and court appearances.
- If mediators become aware of hidden assets, there is nothing they can do about it. A court has the authority to force disclosure.
- Since mediators are not allowed to give legal advice, the parties should both still consult their own attorneys to review the Settlement Agreement before it is filed with the court.
For details about how an uncontested divorce or mediation may work for you, consult an experienced uncontested divorce attorney who will provide you more information and answer your questions. You may contact Georgia Trial Attorneys at Kirchen & Grant for a free consultation.