Un-opposed versus opposed divorce

Going through a divorce is a very difficult experience for most people. My solid advice is to avoid any individual or firms promising a “cheap divorce” or an “easy divorce. I would suggest that you find yourself an experienced family/divorce lawyer to assist you with an affordable and inexpensive and straightforward divorce that will ensure a smooth dissolution of the marriage.

Unopposed Divorce (also known as un-contested divorce) is divorce by mutual consent where both parties are in mutual agreement and both parties are seeking an uncomplicated and uncontested dissolution of their marriage? If both parties have reached an amicable agreement, a settlement agreement can be drafted and this makes the entire process easy and relatively stress-free for the parties involved.

 

It is a fact that each divorce is unique. In some divorce matters the parties will come to agreement soon (after one or two weeks of negotiating). Other divorces will proceed to a full-blown trial after a lengthy period of trying to negotiate a settlement (although this is extremely rare in my practice as I encourage settlement between the parties by mediating their differences).

 

Mediation is a process in which a mediator facilitates communication between the parties.  Without deciding the issues or imposing a solution on the parties, the mediator enables them to understand each other and reach a mutually agreeable resolution to their dispute. The role of the mediator is quite simple; the mediator acts as a facilitator, not an advocate, judge, jury, counsellor or therapist; but rather assists the parties in identifying issues, reducing obstacles to communication, maximizing the exploration of alternatives and helping parties reach voluntary agreements.

Should mediation fail down the line and the parties fail to reach agreement, the divorce process then finally develops into a contested or opposed divorce with severe legal cost implications – it is almost impossible to give an estimate in terms of total cost and expenses pertaining to contested divorces because there are many role players involved and there are many other factors that must be taken into account e.g. pleadings, disbursements like sheriff fees and messengers expenses to name a few.

Should the divorce be an unopposed divorce, the cost will be easier to determine as the process is predictable and there is a set amount of work that will be required. I actually charge an all-inclusive once off fee for an unopposed divorce, which makes life much easier for the client as they are able to budget accordingly and there are no unexpected surprises during the process.

 

The factors that must be taken into account when considering the cost of an opposed divorce are the following:

• The cost of consultations (both in person and telephonic) – your divorce attorney will charge per hour or a pro rata portion thereof for all time spent consulting and advising on your matter.
• The cost of pleadings – all official court documents (pleadings and notices) in a divorce must be drafted by the divorce lawyer and this will also be charged for.
• The cost of correspondence – all emails and letters sent and received by the attorney (both from and to you as well as from and to the opponent) are charged for based on the length and complexity of the correspondence and how long it took your attorney to draft or read the document in question.
• Legal couriers/messengers – the pleadings and notices in a divorce matter must be issued, served and filed to be valid and the cost of the messenger is however still more affordable than if your attorney attended to these duties him/herself.
• Sheriff’s fees – it is a rule that a divorce summons must be served by sheriff and cannot be served by couriers or your attorney. The sheriff charges a fee for this service and the fee will vary based on the status of the service (urgent or standard), whether they have to try more than once to serve the summons, how far they have to travel to serve the summons etc.
• Other hard cost disbursements – this includes but is not limited to printing, telephone calls (mobile and local), text messages, envelopes etc.
• Counsel or advocate’s fees – most divorce specialists (attorneys) will make use of an advocate when the time comes to proceed to trial. The advocate will charge a rate per hour for all court appearances and for any preparatory consultations or briefings that are required.
• Correspondent’s fees – should one or both of the parties to a divorce reside in another province or country, the attorney may have to appoint a correspondent attorney closer to the relevant party to ensure that all processes run smoothly and the required documents and pleadings are served timeously and in the correct manner. The correspondent will charge for all work performed on behalf of your attorney (serving pleadings, accepting service of pleadings, communicating with the client on your behalf etc.)

 

From the above it becomes quite clear that there is a lot more to an opposed divorce than most people believe. There are many role-players involved here and the process can take up to two years to finalize which will obviously also mean that the fees incurred will increase dramatically. It is important to select a divorce attorney who is objective and fair and will secure a favourable result for you without having to proceed all the way to trial.

 

I favour mediation during the divorce proceedings as the process will include at minimum, an opportunity for all parties to be heard, the identification of issues to be resolved, the generation of alternatives for resolution and finally settlement of disputes in order to proceed to court with an unopposed & uncontested divorce.

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