First, generally attorneys charge two different types of fees depending on whether your divorce is agreed or contested. This is because an agreed divorce is shorter, simpler, and takes less time. Normally these agreed divorces are done on a one-time flat fee basis. On the other hand, a contested case is normally billed out at an hourly rate against an upfront retainer that is more than an agreed divorce flat fee. Many times, if you pay for an agreed divorce (that flat fee) and for whatever reason (which will be listed below) your divorce ends up not being agreed, you then have to additionally pay a contested retainer. So, it is fairly important to have a good idea as to which one it will be. Also, many times that flat fee “agree divorce” fee is only available when there is one attorney involved. Generally that one attorney only represents one spouse and the other spouse is willing to go unrepresented. If both spouses retain counsel, normally an hourly retainer is required even if nothing has been filed with the court or the parties intend to settle, because having two lawyers involved generally necessitates at least some negotiation – whereas the idea of a flat fee agreed divorce is that the spouses have already negotiated with each other or will do so independently from the lawyer.
So, how to you decide? An agreed divorce generally means that both parties want to proceed with the divorce, both are willing to voluntarily sign the paperwork necessary to facilitate the divorce, and there is a general agreement on the terms of the settlement. A contested divorce means that there is no up front settlement agreement, a spouse is not willing to participate in the process, one or many terms are disputed, one spouse cannot be located, both spouses retain counsel, there is domestic violence,or any other number of reasons.
What issues need to be discussed to determine whether you have an agreement on terms? The spouses need to have a basic agreement on:
– Day to Day Co-Parenting schedule (examples: week-on, week-off; every other weekend; 4,5 or 6 days out of 14)
– Holiday schedules
– Who will be the Primary Parent and whether decision making will be joint
– Sell or refinance or real property, and payment of any equity
– Division or equalization of investment and retirement and bank accounts
– How to deal with joint debts – terms of payment and consequences if there is default
– Division of personal property, vehicles, and pets
Note that when dealing with real property, the divorce itself, nor the signing of a Quit Claim Deed, will remove one spouse’s name from the mortgage or HELOC. The only way to accomplish that is for one spouse to refinance or to sell the property and pay the mortgage balance. That also holds true for vehicles – one spouse must refinance, sell and pay off, or trade in a vehicle to remove the other spouse’s name – simply getting a divorce or signing divorce papers does not accomplish that and can leave the other spouse liable.
Once the terms are agreed upon, the one spouse who is going to be represented by the lawyer meets with that lawyer, hires them, and then they draft the following paperwork: Complaint for Divorce (based on irreconcilable differences), Marital Dissolution Agreement (where all financial settlements are listed) and the Parenting Plan and Child Support Worksheet, and the Final Decree. Once both parties review and sign these documents (changes can be made if both parties agree prior to filing), they are filed with the Court. After the waiting period (60 days without children and 90 days with children), the represented party and the lawyer attend a brief court hearing where the Judge actually declares you divorced. We recommend not getting remarried for 30 days after that to ensure there are no appeals that could result in the divorce being set aside.
If you need to remove a spouse from real property, you will also need your lawyer to draft a Quit Claim Deed, and if you are dividing retirement, you may also need the lawyer to prepare special forms – usually Letters of Intent/Instruction for IRAs and Qualified Domestic Relations Orders (QDROs) for 401ks and pensions. Without these, the money will not get transferred. The QDRO must also be signed by the Judge before being submitted to the administrator of the retirement Plan.
Questions? Contact our office today and we will be glad to help.