Contested vs. Uncontested Divorce: What is the Difference?
Many people wonder about the divorce process and have lots of questions about what to expect. The answers to most divorce questions depend greatly upon whether the divorce will be a contested divorce or an uncontested divorce.
The length of time it takes and the cost and fees can vary tremendously between contested and uncontested divorces. Read on to learn the difference between the two types of divorces and what to expect for both.
What is a Contested Divorce?
A contested divorce occurs when the married parties do not agree on all aspects of the divorce. If the parties cannot agree, then the divorce will be set for trial, and a judge will make a final ruling on all the contested issues.
Some of the issues that parties disagree about in a contested vs. uncontested divorce include:
- Child custody and visitation;
- Child support;
- Spousal support (sometimes referred to as alimony);
- Use of the family home; and
- Division of the jointly owned or community-owned property.
Contested divorce process
Uncontested divorce and contested divorce include a specific legal process. However, contested divorce proceedings are lengthier, more expensive, and usually more stressful.
A contested divorce is necessary when one spouse is not willing to agree with the other on one or more issues. A contested divorce usually follows the following process:
- First step — file divorce documents
The party who wants to start the divorce process will have the divorce petition drafted by a divorce attorney and then filed with the appropriate court.
- Second step — serve your spouse
Once the divorce papers with all the necessary allegations are filed with the court, your spouse will need to be legally served with the divorce petition. This puts your spouse on notice that you have asked the court to grant you a divorce.
- Third step — your spouse may file an answer
Once your spouse is served with your petition for divorce, they will have the opportunity to file an answer to your petition. The time allowed for the served spouse to file an answer varies by state and will depend upon the laws and legal process in your jurisdiction.
- Fourth Step — set the case for hearing
Assuming your spouse disagrees with your pleadings and files an answer to contest your allegations, the divorce court will set the matter for a hearing. What happens at the first and subsequent court hearings depends on the laws of your state. However, the judge or hearing officer will make a preliminary, usually temporary, ruling on issues that need to be decided upon while the divorce is pending. Such issues may include:
- Who resides in the family home pending a trial on the merits of the case;
- The temporary custody and custodial schedule for any minor children;
- The responsibility for payment of monthly bills pending a trial on the merits of the case;
- The use of vehicles, bank accounts, and other assets pending a trial; and
- Temporary spousal support.
- Fifth step — set the case for trial
The court will set the contested issues for a trial and will usually set deadlines for when the parties and their lawyer must complete depositions, interrogatories, requests for production of documents, and more. There are usually pretrial hearings dates set as well.
- Sixth Step — have a trial on the contested issues
The trial may include issues of child custody, child support, spousal support, and the division of assets. Sometimes these contested issues may be split into more than one trial, such as child custody and support in one trial, the right to spousal support and the amount of it in a different trial, and the division of property in another trial.
Many times the parties may reach a settlement somewhere along the way, and the case may not make it through all the steps. Further, the divorce decree itself will often be granted along the way at a separate hearing from the contested issues.
What is an Uncontested Divorce?
The difference between uncontested versus contested versus divorce is great. In an uncontested divorce, the parties agree on all issues presented by the divorce process. Usually, the parties decide in advance on the following issues:
- Custody and visitation of any minor children;
- Which party will keep the family home or agree to sell it;
- Whether a spouse will pay support to the other, for how long, and in what amount;
- How the assets will be divided.
Uncontested Divorce Process
Whether you have a contested or uncontested divorce, the divorce decree will eventually be granted. However, the uncontested divorce process is much simpler and more straightforward than the contested divorce process.
- First step — draft documents
One of the spouses will have the divorce pleadings drafted by an attorney who will know how to file the proper legal documents to begin the divorce process. The attorney will draft the pleadings to include all the agreed-upon issues, including child custody and support, any spousal support, and how the parties’ assets will be divided.
- Second step — spouse reviews the documents
Once the divorce documents are drafted, the other spouse will review the documents and ask for any modifications or clarifications they want. Usually, the other spouse will have their own attorney review the documents with them to be sure their legal rights are protected.
- Third step — execute and file the agreement documents
Once any necessary changes are made and the documents are finalized, the parties will sign the agreed-upon documents before a notary public and then file the documents with the proper court.
- Fourth step — judge signs the proposed judgment
Once the judge reviews the documents and determines that everything is in order, they will sign the proposed judgment or decree, finalizing the divorce and the agreement of the parties.
Benefits of an Uncontested Divorce Over a Contested Divorce
The benefits of an uncontested divorce over a contested divorce are numerous. Some of the most important benefits include:
- The parties are in control and able to make their own decisions about important personal matters.
- The parties are more likely to preserve an amicable relationship.
- The process is usually much less stressful.
- The process is much shorter and less complicated.
- The parties save a lot of money on attorney’s fees and court costs.
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The Main Differences Between Contested and Uncontested Divorce
There are many differences between contested and uncontested divorces. However, some of the biggest differences include:
- The time it takes to complete the divorce process;
- The cost of the divorce process, including legal fees and court costs;
- Who makes the ultimate decisions about very important personal matters;
- The level of the parties’ stress; and
- How well the parties communicate and cooperate.
How Much Does it Cost to Get a Divorce?
The cost of a divorce includes attorneys fees, court costs, and other litigation expenses. These costs can vary tremendously depending upon your state and jurisdiction.
However, the greatest influence on the cost of getting a divorce is usually whether the divorce is contested or uncontested. When the parties can agree on the major issues, the cost of divorce will be much less than if they insist on litigating the many issues present in a divorce.
The court costs will vary by state and court. However, if all aspects of the divorce are litigated, the parties will be required to file numerous pleadings leading up to trial. The court costs will increase with each legal document filed.
Attorney fees also vary greatly depending in large part upon the attorney’s experience and geographical location. Some attorneys will charge a flat fee for an uncontested divorce, while others charge hourly whether the divorce is contested or uncontested.
In a contested divorce, the attorney will spend a great deal more time representing their client and will therefore have much greater fees than in an uncontested divorce. In addition to preparing and filing documents, attorneys in contested divorce cases expend a large amount of time on discovery. Discovery includes drafting and filing interrogatories and requests for the production of documents, as well as preparing for and conducting depositions.
The Final Words
A contested divorce is likely to be one of the most unpleasant experiences of a person’s life. When a marriage ends, the parties often have animosity toward each other. Those bad feelings can make it difficult to come to an agreement on some of the most important aspects of their lives.
When spouses are confronted with the challenges of splitting up their home, their assets, time with their minor children, and life as they once knew it, emotions can run high. When that happens, it can be difficult to think clearly and fairly. In these cases, it is important that both parties seek advice from a competent divorce attorney to ensure their legal rights are protected.
However, when the parties are able to agree on the major issues, they can maintain control of the divorce process, making the experience much less stressful and less costly.
It is not always possible to agree on all the major issues in a divorce. In those cases, a contested divorce is necessary. However, if the parties are fortunate enough to come to an agreement about the important matters such as child custody and support, spousal support, and the division of their assets, having an uncontested divorce makes the process much easier and less expensive.