Thomas Cothran Thomas Cothran is an attorney who practices family law in Fayette County, Kentucky. This guide explains what an uncontested (or agreed) divorce is, what the process is like, and how to prepare for one.
Are you thinking about getting a divorce, but think you and your spouse can agree on everything? Then this guide is for you.
There are two kinds of divorces: contested and uncontested divorces. In a contested divorce, the husband and wife do not agree about division of property, custody of children, or some other matter. An an uncontested divorce, the spouses do agree on everything.
Uncontested divorces have two advantages: First, they don’t involve ugly court fights. Second, they are usually cheaper. For example, my standard rate for an uncontested divorce is $750, while I charge at least $2,000 to even start on a contested divorce. (And my prices are on the middle-lower end of the spectrum in Lexington.)
Table of Contents
The Court System
All divorces in Lexington are filed in the Fayette County Family Courts. There are four family Judges in Fayette County: Judge Philpot, Judge Masterton, Judge Schrader, and Judge Stein.
The Family Courts handle all family matters, including domestic violence, neglect or abuse, child support cases, and status offender cases. There is a “one family, one judge” rule. What this means is that if you have any kind of family case in Fayette County, you will be assigned a judge. That judge will handle any type of family case you have in Fayette County after that. For example, if there was a domestic violence case and you later file for divorce, the same judge will handle both cases.
Read more about the Fayette County Family Courts.
The Process for an Uncontested Divorce.
If you are serious about getting a divorce, the first thing you need to do is figure out whether your divorce will be contested or uncontested. You can discuss with your spouse any issues relating to the division of property, maintenance (a.k.a. alimony), child custody, and child support. If it appears you and your spouse care agreed on everything, the next step is to talk to an attorney.
Selecting an attorney for an uncontested divorce
There are several factors to consider in selecting an attorney for an uncontested dissolution. You need to choose an attorney who practices in the area of family law. Choosing an attorney with no experience doing divorces can easily turn into a train wreck.
You also need to choose an attorney who practices in Lexington, or is familiar with the Fayette County Family Court rules. Every county has different rules for how it handles divorces. Fayette County’s rules are more complicated than the surrounding counties. If an attorney does not follow the Fayette County’s local rules, your divorce can be delayed.
Finally, you may want to choose an attorney that charges a flat rate, rather than an hourly rate. If a divorce is uncontested, an attorney can offer a flat rate so you know exactly how much you are paying. For example, I charge a flat rate of $750 for uncontested divorces.
Once you have selected an attorney, contact them to set up an appointment. You may have to call the office. I also provide the option where new clients enter their contact information, and then I contact them to set up an appointment.
Read more about finding an attorney for an uncontested divorce.
Filing an Uncontested Divorce
So what does the uncontested divorce process look like after you’ve hired an attorney? First, the attorney will require you to execute a retainer agreement and pay the retainer fee. The retainer agreement creates the attorney-client relationship. The retainer fee could be an hourly rate or a flat fee. I use a flat fee so that people know exactly how much they will spend, but many other attorneys use an hourly fee.
After you hire your divorce attorney, they will collect information from you so that they can draft the divorce paperwork. Some attorneys will require you to bring all the necessary information to their office. I find it easier to use a a questionnaire. The client can take the questionnaire home and work through it at their own pace.
After you provide the necessary information to the attorney, the attorney will file the divorce at the Fayette County Circuit Court Clerk’s office. The filing will contain the Petition for Dissolution and a few other documents, such as entries of appearances and vital statistics forms. Once the Petition has been filed, your uncontested divorce has begun.
In order to conclude the divorce, you will need to sign a number of documents. The most important of these is the Property Settlement Agreement. The Property Settlement Agreement will divide your property and debts, establish the custody of children, set a timesharing schedule, and set child support.
Both parties need to sign the Property Settlement Agreement. It is very important you read it carefully. It will be incorporated into the Decree of Dissolution and have the force and effect of a court order. That means if you disobey it, you can be in contempt of court.
You can get a divorce in Fayette County without having to go in for a hearing. Your attorney will have you sign the necessary documents to request the divorce by conducted by written deposition. You will sign a deposition that will have your testimony that you would have given in family court..
Dividing Property in an Agreed Divorce
If you think you and your spouse can agree on the terms of a divorce, you need to talk very specifically how you will divide your property in your marital estate.
What is the marital estate?
Roughly speaking, the marital estate includes all property and debts that either spouse acquired during the marriage, except for any gifts or inheritances. Note that gifts are only an exception if they are specifically given to just one spouse. As a general matter, each spouse is entitled to half of the marital estate.
You and your spouse need to make sure that you agree on how to divide all of the property in your marital estate, including any real estate, retirement accounts, insurance policies, household items, business interests, investment instruments, cash, bank accounts, and pets.
What about alimony?
In Kentucky, alimony is called “maintenance.” A majority of divorces, whether uncontested or contested, do not result in one spouse paying maintenance to another. If maintenance is ordered, it generally runs for a relatively short period of time. But in an uncontested divorce, maintenance can be useful when splitting up property would otherwise result in one side having much less than the other.
Child Custody and Timesharing
If you think your spouse will agree to an uncontested divorce, you need to make sure you are on the same page when it comes to the children. Children are more important than property, and it is very important to have an agreement that will be workable into the future and not result in future conflict.
There are two aspects that people often confuse when it comes to children in a divorce: custody and timesharing.
Child Custody in Agreed Divorces
Custody refers to who gets to make important decisions concerning the children. It does not refer to where the children spends most of their time.
Joint custody means that both parents have to agree on any major decision involving the children. The parents need to be able to co-parent and make important decisions to things like school, medical treatment, and so on. Joint custody is the default arrangement in Kentucky, and there should be a good reason to give any parent sole custody.
Sole custody means that one parent has the authority to making decisions for the children. That parent gets to decide where the children go to school, who their doctor is, and so forth. Note, however, that the parent without custody can still appeal to the family court if he disagrees with the decision of the custodial parent.
In an uncontested divorce, the parents need to be able to agree on who should have custody.
Timesharing in Agreed Divorces
Timesharing refers to where the children spend their time. There are a number of different timesharing arrangements. Many parents do week on/week off timesharing, where the children spend one week with one parent and the other week with the other parent.
The Fayette County Guidelines have a scenario where one parent is the primary residential parent. The children spend only every other weekend and occasional weekdays with the other parent.
In an uncontested divorce, the parents can agree to the timesharing schedule that suits them. The Fayette County Guidelines are not binding on them, and other arrangements may work better for your situation.