What is a Negotiated; Divorce?

Posted: 19 July, 2022

How can you get your spouse to sign divorce papers? 

Generally speaking, most people only know about two types of divorces available; uncontested or contested.  However, there is a third type, which we will talk about here, and which is often the best solution for clients in a difficult divorce situation. Especially one where their spouse does not want to get divorced.

The best known types of divorce are the “uncontested divorce”, and the “contested divorce”.  The uncontested divorce is where both spouses agree to all the terms of the divorce.   A contested divorce, on the other hand, is where the spouses cannot agree and must submit their case to the judge to make a final decision.

A contested divorce is accomplished by one spouse filing the divorce papers and then serving the other spouse with them.  Your spouse then has 21 days to respond, or you can seek a default.  If your spouse responds, then the divorce moves forward until a judge makes a final decision, or, until you and your spouse reach a settlement.

The uncontested divorce is accomplished by the filing of a joint petition for divorce.  Uncontested divorces are easier than contested divorces because both spouses agree on all of the issues, such as child custodychild support, division of marital assets, and alimony.  Both spouses agree to the such terms and sign the divorce papers.

Obviously, the uncontested divorce is easier to deal with than the contested divorce.  Since both spouses are in agreement with the uncontested divorce, there is less conflict between the spouses during the process.  This makes uncontested divorces quicker and less expensive.  But, your spouse doesn’t have to sign uncontested divorce papers just because you give the papers to them.   And your divorce attorney cannot make them sign uncontested divorce papers.

This can make for a problem, as some spouses do not feel the same way about getting divorced, and do not want to be divorced, so they will do nothing when they receive papers.

Negotiated Divorce.  The Third Type of Divorce. 

The problem of the spouse who doesn’t want to move forward with a divorce can be solved by a third type of divorce, called a “Negotiated Divorce”. A negotiated divorce is used when the other spouse should agree to a divorce but will not sign papers.   Divorce lawyers use a negotiated divorce in this type of case.    Sometimes the couple could file an uncontested divorce, but one spouse will not sign anything.  This is where a negotiated divorce comes in.   Divorce attorneys use this method to get the other side to agree to an uncontested divorce after a contested divorce has been filed but no decision by the court has been made.

In many cases one spouse decides they want a divorce and the other spouse does not. The other spouse is fine with the marriage, wants to keep trying, still loves their spouse, or for religious purposes does not want a  divorce. The other spouse will not sign documents for an uncontested divorce, even though they have nothing to fight over. The other spouse can’t stop the divorce, but they can prolong the divorce by not agreeing to it.  Remember, to get a divorce you either get your spouse to agree to the terms, or you submit your evidence to the judge who will make the final decision.

It takes two spouses to get an uncontested divorce.  So, how do we get our client divorced without wasting time and money getting to a judge? We use a negotiated divorce.

We don’t bother drafting an uncontested divorce.  The other spouse will not sign it.  An uncontested divorce filing does not have a deadline for responding.  The other spouse does not have to sign it, ever.   Instead, we file a contested divorce and serve the documents on the other spouse.   By filing a contested divorce the other spouse only has 21 days to respond or we can file a default.  If they don’t respond in 21 days we file a default divorce order.  The divorce is over.

To get the other spouse thinking of a settlement, we attach a settlement letter to the documents.  The letter outlines specific terms for the divorce, terms you want, or, terms you think your spouse will agree to and find reasonable.  Now the other spouse has to do something and they only have two choices.  They can spend thousands of dollars hiring a divorce attorney to respond, or they can reach out to their spouse’s divorce attorney to discuss the terms outlined in the letter.

By serving the divorce papers and including a settlement letter we have done two important things.  We are forcing the other spouse to take action, and we are giving  them an option to negotiate the terms of the divorce.   They can fight, or they can negotiate.   But they can no longer do nothing.

In cases where there really isn’t anything to fight over, the other spouse will usually settle.   In cases where there is no reason to fight, the other spouse will agree and we can finalize the divorce.   We then draft up a document called a “negotiated divorce decree” and both spouses sign it.  The word “negotiated” essentially means all parties agree on the terms of the divorce, which are sometimes also called “stipulations”.   After the negotiated divorce is signed, we submit it to the judge for a review.  The judge simply reviews the settlement negotiated to by both spouses and approves it.

The overall goal of a negotiated divorce is to come to an agreement on the divorce that both spouses can live with. With the terms agreed to both spouses, the divorce attorneys can finalize the papers and file them with the court.

Court Approval of a Negotiated Divorce

It is critical that the negotiated divorce agreement be approved by the court.  It won’t become legal and binding until a judges signs the agreement.   While most negotiated divorce agreements survive the court’s review, occasionally the court will withhold its approval if the details of the agreement don’t comply with Nevada law. This is where your attorney comes in, to make sure everything in the document is legal and enforceable.

The agreement must divide assets and debts in a fair and equitable manner and it must address the future of any children, including child support, visitation and custody. Once the negotiated agreement is agreed to and signed, the papers are filed with the court. In Nevada, a negotiated or uncontested divorce can only be granted if every one of the following conditions have been met:

  • The negotiated agreement settles all issues related to custody, visitation and child support, in accordance with Nevada law.
  • The agreement divides the property to everyone’s satisfaction and in accordance with Nevada law.
  • Both spouses have either waived their right to alimony, or they have come up with a satisfactory alimony agreement.
  • Both spouses have given up or waived their right to appeal the judge’s order or to contest the order in any way.
  • Both spouses agree that the court may enter a final, permanent divorce decree.

There are several advantages to a negotiated divorce. It allows both spouses to reach an agreement they can both live with. It gives both spouses a feeling of control over their own destinies at an uncertain time.  A negotiated divorce is quicker and less expensive than a contested divorce.  Contested divorces can cost tens of thousands of dollars in divorce attorney fees.   Contested divorces can take six months or more to finalize. A negotiated divorce might only take 30 days.   A negotiated divorce is half the cost of a contested divorce.  For all of these reasons, negotiated divorces are an excellent way to get your spouse to agree to the divorce.

Need a Negotiated Divorce?  Contact the Right Divorce Lawyer at (702) 914-0400.