A question I am often asked is what makes an Alabama divorce uncontested? The truth is that the concept of an “uncontested” divorce is not necessarily easy for people unfamiliar with the subject to grasp. To be “uncontested” under Alabama divorce law the parties must agree on ALL issues, not just some of them. Both parties can agree they no longer want to be married and want a divorce but that alone does not make the divorce “uncontested.” If there is any issue, dispute, lack of agreement or simple unwillingness on either party to sign then, under Alabama law, the divorce is contested rather than contested. Common areas of dispute include child custody, child visitation schedules, the division of debt, the division of assets, the division of retirement benefits, the division of military retirement benefits or pension benefits, property division, the division of complex assets, child support, tax deductions associated with the children, the payment of college expenses or other post minority support, life insurance benefits and, of course, alimony or spousal support.

While these disagreements are the most common I have seen uncontested divorces break down and have to convert to a contested divorce on just about every conceivable dispute including disagreements over the custody of pets, disagreements over the use of one party’s last name, disagreements over who will be the plaintiff and who will be the defendant and even, simply, when one party does not believe in divorce and will not sign under any condition. Despite the fact that they do not “contest” the divorce in that they do not want to have a hearing or otherwise present evidence in a disputed fashion the divorce must still proceed as contested because the uncontested documents cannot be filed without signature.

In addition to the ease in which an uncontested divorce can be obtained the distinction between an uncontested divorce and a contested divorce also has financial implications. Uncontested divorces are often handled by attorneys in Alabama on a flat fee basis.   The flat fee is based on the fixed time it takes to convert the information provided by the client into the pleadings and forms required under Alabama law. These forms include a complaint, affidavit of nonrepresentation, answer, waiver, testimony and final order at minimum and if children are involved a host of child support forms related to the parents’ income, the cost of healthcare coverage for the children and the cost of daycare/afterschool care and proof of compliance or an explanation for noncompliance with Rule 32 of the Alabama Rules of Judicial Administration. I will add here that cheaper is not better. You note that the required documents do not include a settlement agreement spelling out specifically all the provisions of your agreement in detail.

Many attorneys doing uncontested divorces “on the cheap” do not include for the price quoted a settlement agreement. A settlement agreement is a lot like a receipt. If you get home and something you purchased is missing or if you are charged for some item you did not receive you can go back with proof and contest the charges. If an items breaks or has problems you can seek a refund. With no settlement agreement any trip back to court will have you starting again at square one and depending on the issue you may not be able to get recourse at all.

Most contested divorces, unlike uncontested divorces, in Alabama are handled on an hourly basis with a retainer. The retainer is like a prepaid credit card where a set amount of money is paid upfront to secure the services performed and the available balance to pay future charges diminishes as work is performed. The work done is not “form” in nature and varies greatly based upon the issues in the case. An Alabama contested divorce will be discussed in an upcoming blog.

In summary, your divorce is only “uncontested” and entitled to fixed pricing if you and your spouse agree on ALL issue and both are willing and able to sign documents making the necessary disclosures and documenting the agreement reached. If there is disagreement on ANY issue or an unwillingness to sign your divorce must proceed the contested route where both parties will be entitled to do discovery and present evidence in an adversarial process. Even if you think the facts dictate that your spouse should agree you cannot take away their right to their day in court.