The Polite Fictions of Uncontested Divorce

As you no doubt know by now, I’m a big advocate for uncontested divorce. Aside from a do-it-yourself divorce, which in many states is fraught with difficulty and likelihood of rejection, uncontested divorce is the simplest, fastest, and cheapest way for couples to divorce when they are able to be reasonably cooperative. Although I advocate uncontested divorce, and do so enthusiastically, I am aware of some assumptions within it that are just a tiny bit goofy:

There’s a dispute between the spouses.

At its heart, an uncontested divorce is a lawsuit. One spouse files a complaint, and the other spouse answers it. To justify the involvement of the court, there needs to be a “controversy.” So even in the most agreeable of divorces, the documents must set up some kind of disagreement that “requires” the court’s intervention to resolve. The controversy can take many forms, but the most frequent is to disagree about whether the parties are truly incompatible. In Alabama where I practice, I am permitted to state the controversy in the form of a demand from the Defendant that the Plaintiff prove that grounds for divorce exist, that the parties truly are incompatible.

One of the spouses is a plaintiff, and the other is a defendant.

The language of litigation demands that the parties arrange themselves on opposite sides of the lawsuit. Even when the spouses are cooperative and working to accomplish a common purpose (ending their marriage with as little pain and expense as possible), they must pretend to be adversaries.

The documents are executed in sequence, not simultaneously.

As part of creating and resolving that controversy, the Plaintiff files his or her complaint, and then the Defendant answers the complaint demanding proof, and then the Plaintiff provides that proof in the form of written testimony. (The Plaintiff’s testimony can be written only if the Defendant waives the right to insist that it be oral; that’s why the Answer is usually in the form of an Answer and Waiver.

Even though the documents are theoretically in sequence, as a practical matter many clients execute all the documents simultaneously and then they are filed simultaneously. The courts allow us to do that to save time and money. But in order to preserve the fiction of the sequence, it’s important that the documents, particularly the Answer and Waiver, be undated. Often I am held up in filing the documents for uncontested divorce because a well-meaning client (or the client’s spouse) has insisted on dating the Answer and Waiver.

The reason stated for the divorce often has little to do with the real issues.

Because of that controversy we discussed, the Plaintiff must show that the parties are incompatible. No, the court will not accept a simple statement that the parties are incompatible, because incompatibility is a finding, not a circumstance. So the Plaintiff must state some specific reason why the marriage cannot continue and why divorce is necessary. At the same time, however, husbands and wives who are filing to end their marriage would rather not insert in a public record a bloody and embarrassing litany of wrongs committed by each other. As a compromise, the courts allow us to use a factual statement that sounds specific but is in fact simply a boilerplate statement. I am personally grateful for this freedom, because it protects husbands and wives (and their children) from disclosure of facts the public simply doesn’t need to know.