What is an uncontested divorce?

The answer to the question above depends on how "divorce" is defined.

If by divorce, we mean the steps of formally ending the parties' marriage by a Divorce Order, granted by the Court, then here, an uncontested divorce is one which is either:

(a) proceeding on the consent of both parties; or
(b) is requested by one party and not opposed by the other.

A divorce in such a case can proceed either at the request of one spouse or based on a joint Application made by both parties. Uncontested divorces are quite common - they involve primarily the completion of the required paperwork, its service on the other side, its filing with the Court and a Judge's signature.

If by divorce, we mean all of the issues arising out the separation of a couple (for example custody, child support, spousal support, etc.) then uncontested divorces in this instance are less common but they are still possible. There are couples who work out all the terms of their separation directly with each other and then one retains a lawyer to incorporate them into a separation agreement, for example. There are also situations where the agreement is reached in the context of mediation.

Not every separation results in an "all-out fight" between the spouses - if you are interested in finding out how to complete a sane separation and divorce, please contact us for more pointers.

Christmas Access Angst.....

Only 11 days left until Christmas as I write this.....

Most parents who celebrate the season with their kids are in the midst of finalizing their shopping lists and finding reliable hiding spots for the gifts. Many share with their friends their "close encounters" of being caught moving Elf on the Shelf.

Many separated and divorced parents already know when their kids will be with each of their parents over the holidays. Specific celebration are already organized around those times, including with extended family. In many homes, Christmas Eve is the most important night of celebration. Families gather at the festive table and in some traditions, including among Poles, Santa's gifts are opened on Christmas Eve. For others, Christmas Morning is what it's all about. Many parents insist there is nothing quite like seeing your child, still in their pajamas, ripping through wrapping paper to get to their much-coveted prize.

There are parents, believe it or not, who have worked out arrangements in advance and will not face the angst often associated with addressing access issues during this holiday season.  How did they do it and is their experience something YOU can build on to make more manageable this already-stress-filled time of the year? Here are some suggestions:

1. Direct dialogue between parents is the ideal. They, working together, are in the best position to work out arrangements for the holidays.  If you are expecting some negotiations in direct discussions, start early. Do not give up on this approach just because you expect some resistance. Open dialogue is the key and there is a great sense of empowerment and satisfaction when parents are able to successfully sort out this issue on their own (not to mention the legal fees saved or even eliminated altogether).

2. Mediation is another, very useful option. Christmas access can be addressed as part of a larger mediation dealing with all of the children's issues but it does not have to be - parents can approach a mediator with a specific request to deal with Christmas access only - a one-issue mediation. The key is to start the process early so that there is time for any meetings, discussions and the writing up of the agreement. We are great supporters of mediation and have seen it deal successfully with even the most difficult and emotionally-charged situations.

3. Parenting Plans and Separation Agreements, particularly when negotiated in advance, can provide an indispensable road map for how to deal with Christmas (and in fact, any other holiday with the children). Whether worked out through mediation or with the assistance of lawyers or even a judge (in the case management process), Separation Agreements and Parenting Plans can include mechanisms (as detailed as the parents needs them to be) for sharing, dividing, or even alternating the specific days, year to year.

4. Court should be the last resort. There are parents who simply cannot work out the issue of Christmas access, not directly, not through mediation or through counsel. There are many reasons for this (and we are planning on addressing some of them through future posts). In those situations, and assuming neither side is prepared to compromise for the sake of the Kids and overall peace, a motion may be necessary. What is that exactly? It's a request to a Judge, by way of a Court hearing, to determine the Christmas schedule by Court Order.

If you have been left with no choice but to bring a motion, do so in as much advance of December 24th as possible (that is generally the last day on which Christmas motions are heard, assuming it does not fall on the weekend). This should REALLY be the last resort. Imagine not knowing where the children may be the very evening of the day the Court Order is made!? (if the motion is argued as late as December 24th). Imagine your children not knowing where they will be and when!!!? Yes, there are scenarios in which there is no other options but you owe it to yourself and to your children to start the discussions about this issue EARLY so if the need for a motion is identified, the hearing can take place in early December.

Most of all: - be reasonable. This Season is about peace, harmony and compassion. It is not about winning, it is not about besting the other parent in a competition about time, it is not your opportunity to punish the other parent for a past wrong, it is not about control. The more you and the other parent fight about the holidays, the greater the spill-over effect on your children. The magic of the season may very well be ruined for them, through your conflict. Think about that.

A very handsome Snowman from the Sutton Santa Claus Parade (2015)

One Spouse = One Lawyer

I am asked, from time to time, to meet (and give legal advice) to both spouses in a separation. In such situations, one spouse, by way of telephone call, tries to convince me that he or she are not fighting with the other, that they have agreed on everything and that they simply need one lawyer to "put it in writing" or "finish the paperwork". The primary motivation is such cases is cost.

While the fact that you and your spouse get along is a great thing, that cooperation does not alter the fact that your rights before the law may be adverse (different). For this reason (and several others), each of you needs a lawyer of your own. The fact that you are cooperating will simplify matters considerably and save costs as well, but one lawyer cannot act for you both.

It is possible for one lawyer to prepare a Separation Agreement, for example, on behalf of either the husband or the wife (his or her client). The other lawyer will then review the draft of the document and advise his or her client about it, independently and confidentially. In this scenario, one lawyer will represent one client (spouse) - at all times.