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The Difference Between an Uncontested and Contested Divorce, and the Importance of that Distinction on the Feasibility of a Do-It-Yourself Divorce

By:     Marc A. Rapaport
          January 29, 2015

divorce The Emergence of Self-Represented Litigants as the New "Normal"

In past generations, there was a presumption that virtually every matter filed with a court necessitated the hiring of an attorney. Beginning in the late 1990's, there emerged in courthouses throughout the United States an entirely new phenomena: large numbers of self-represented (otherwise known as "pro se") litigants. These are individuals who, either by personal choice or financial necessity, decide to fill out court papers and represent themselves. The phenomena of the "pro se" litigant coincided with - and was undoubtedly related to - the emergence of the Internet as a vast resource of legal information and forms, as well as the rapid and dramatic increase in hourly fees charged by attorneys.

When the phenomena of the self-represented litigant first emerged, the legal establishment reacted with alarm, and treated the trend as a crisis that demanded widespread adjustment among courthouse personnel. In 1999, the Fordham Law Review published an article by Russell Engler entitled And Justice for All - Including the Unrepresented Poor: Revisiting the Roles of the Judges, Mediators, and Clerks (67 Fordham Law Rev. 1987 (1999). Even in its title, Mr. Engler's article reflected the presumption - prevalent at that time - that only someone without funds to hire an attorney would attempt to go it alone. Mr. Engler began his article by raising the alarm, "unrepresented litigants are flooding the courts", and he called upon all players in the legal system to adjust and evolve so as to deal with that trend.

During the past 15 years, the phenomena of the self-represented litigant has become, particularly in divorce cases, the new normal. The courts have, indeed, adjusted. Services (including DivorceToday.com) emerged that provided individuals with basic tools and forms needed to navigate the divorce process. Although statistics vary among states, it is now widely accepted that more than ½ of divorces involve at least one spouse who is self-represented. For example, in 2012, the Sarasota Herald-Tribune reported that 55 percent of all divorces in Sarasota and Manatee counties involved at least one spouse who was pro se. Similarly, the New Hampshire Supreme Court Task Force on Self Representation reported that 70% of domestic relations matters involved at least one party who was pro se. Clearly, self-representation in divorce cases is now an option that millions of Americans, from all different financial backgrounds, choose.

When is it Feasible for Someone to Get Divorced Without an Attorney?

When DivorceToday.com was founded in 1999, we determined that do-it-yourself divorce kits were a reasonable option only in divorce cases that are uncontested. Our philosphy and commitment has not changed during the past decade and half. DivorceToday.com offers uncontested divorce kits and marital agreements. The uncontested divorce kits consist of the divorce pleadings and other paperwork that must be filed with the court to get a divorce. The marital agreements contain language and suggested terms and provisions for agreements in which separating or divorcing couples resolve all of their issues. All of our kits are intended for situations where individuals have resolved (or they wish to resolve) their marital issues on their own, rather than proceeding to a trial before a judge.

In order to determine whether our divorce forms kits and separation agreements are appropriate for you, it is important that you first determine whether your divorce is likely to be uncontested. In an uncontested divorce, the spouses agree on all of the issues. Sometimes, this takes time, and involves negotation. If they do reach an agreement, they do not need a judge to listen to their testimony and make a decision regarding the division of their assets, or to make decisions regarding alimony, child support or custody. They make the decisions themselves, and memorialize their settlement in a document known as a Marital Settlement Agreement. In general, an uncontested divorce will proceed through the system more quickly, be much less complicated, and less of a financial burden. Many couples begin the process by downloading one of our do-it-yourself marital agreement templates. The marital agreement kits have sections that address virtually every issue that you will need to resolve in your divorce.

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