I have to begin this article by addressing a common misconception which I do not want to perpetuate. That being, that an ‘Agreed Divorce’ isn’t really a thing – at least not technically speaking. A divorce is simply a divorce, which, like most any other legal proceeding, can be resolved through an agreement of the parties, or through a trial. I mention this because it’s not uncommon for me to consult with clients who have been served divorce papers, but who have been told by their spouses not to worry because “they’ve filed for an agreed divorce.” The filing and service of a complaint for divorce starts the clock running on various deadlines which, if not met, can result in severely negative consequences for the spouse who has been served with the papers. Now, a case that begins with service of divorce papers certainly can be resolved by an agreement – and in fact most divorces end that way, believe it or not. However, this scenario is certainly separate and apart from what most attorneys think of when they are referring to an ‘agreed divorce’.
The above should have tipped you off slightly to what constitutes – in my opinion – an ‘agreed divorce’. To me, an agreed divorce is one where the terms of the divorce have been agreed upon before any papers are filed with the court. As you may already know – and can learn more about elsewhere on my website – every divorce requires the assets and debts of the spouses to be equitably divided, and, if there are minor children of the marriage, for a permanent parenting plan to be established which is in the best interest of those children. In a typical ‘agreed divorce’, the spouses, out of a desire to avoid the costs of money, time, and sometimes sanity, will discuss amongst themselves terms which they agree to be a fair division of the assets and debts.
For example, it’s not uncommon for a married couple with a house, two cars, and no children, to agree that a fair division of their marital estate may be to sell the house, split the proceeds, and for each spouse to take one car. In that scenario, those parties would need to retain counsel to prepare a marital dissolution agreement – which is a contract that would formalize their agreed division of property – as well as a complaint for divorce, a final judgment for divorce, and to prepare the statistical information necessary for the Tennessee Department of Health to generate the parties’ divorce certificate. The spouses would sign the marital dissolution agreement, and then the attorney would file all of the documentation at the courthouse in the appropriate county.
After the appropriate statutory waiting period – 60 days if there are no children or 90 days if there are – the judge or chancellor before whom the case was filed could sign the final judgment for divorce, which would formally grant the divorce. In my example, if all the facts remained the same, but the parties had minor children, the only difference would be that the attorney drafting the paperwork would need to prepare a permanent parenting plan and child support worksheet for the spouses to sign as well.
Now, there is an implication in my hypothetical agreed divorce that I need to address, because it is of paramount importance. Specifically, one could assume from my example that both the husband and wife will be represented by the same attorney. That assumption would be incorrect. To oversimplify, an attorney generally cannot represent two parties who are on opposite sides of a lawsuit. Even in an agreed divorce, the case itself will be titled “Husband vs. Wife – or Wife vs. Husband” – which makes total sense, if you think about it. Arguably, what is “best” for either spouse in a divorce is to walk away with as many assets as possible. While, of course, this is less of a concern for parties who have decided to amicably resolve their differences, an attorney still needs to advise his or her client as to what that client could potentially be entitled to receive through their divorce, so that client can make an informed decision. You can see then the difficult situation an attorney would be in if he or she had to advise two parties with opposing legal interests how to get as much as possible. So, what typically happens in an agreed divorce is that only one spouse hires the attorney, then the other spouse either proceeds without an attorney, or (wisely) retains their own counsel to advise them as well, and to help ensure that both parties understand exactly what it is they are agreeing to when they sign their divorce papers.
If you are interested in an attorney to draft or review papers for an agreed divorce in Knoxville, or its surrounding counties in east Tennessee, I’m more than happy to speak with you about your case. Give me a call, or schedule a time for me to call you, for a free consultation, using the “Contact” button on this website, or directly, at 865-269-2524.
