Divorce: Uncontested or Contested?

Pursuing a divorce can be a daunting task, as it requires couples to sort through a variety of complicated and emotional issues stemming from their marriage. From dividing finances and property to determining custody over children, divorce can be both overwhelming and stressful. If you feel stuck, a good place to start is determining which of the two categorical umbrellas your divorce may fall under. Divorces can be either uncontested or contested, and the category of a divorce will determine the cost, duration, and other details. 

What is an Uncontested Divorce?

The easier and much simpler of the two types of divorce is an uncontested divorce. A divorce is considered uncontested when the spouses come to an agreement on the issues of a divorce prior to the filing of the divorce and agree on how the issues should be handled without court involvement. These issues can include the four major areas of a divorce: (1) child custody (2) child support, (3) spousal support, and (4) property division, as well as any other issues specific to each case. Since there are no disputes between the spouses, there is no need for the court to make a determination in these areas prior to granting a divorce.

A party must still initiate or file a divorce action, and both spouses should hire an attorney to help with the process to make sure the divorce is filed properly and will be accepted by the court. However, uncontested divorces are, on average, quicker, cheaper, more private, and less stressful than contested divorces. The parties of an uncontested divorce can avoid the increased court costs and attorneys’ fees that often accompany a contested action. 

Quicker

An uncontested divorce negates the lengthy litigation process entirely. With a contested divorce (litigation) each party must file certain documents with the court within certain time frames and allow the other party 30 days (or more) to respond to each filing. In addition, the case will be set for hearings on dates determined by the court. Therefore, if the court has 100 cases to hear before another has been filed, then the parties to a newly filed divorce must simply wait to be heard. Aside from the availability of the court, the parties must also engage in an often lengthy “discovery” process which requires the parties to exchange financial and other relevant information in preparation for trial within a certain period of time. Discovery includes both written and oral processes such as Requests for Production and Depositions. An uncontested divorce, however, skips the Discovery process altogether because it is simply unnecessary. 

Cheaper

As one can imagine, when less time is spent on a case—money is saved. When attorneys represent a party in a divorce, it is the attorney that prepares all written discovery, drafts documents for filing, and argues in front of the court. This all takes time which the attorney bills for on an hourly basis. 

More Private

Unless the record is sealed (which is not common in a divorce) every document and exhibit filed with the court is open to the public. In addition, each hearing is recorded by a court reporter and open to the public. An uncontested divorce, while still open to the public, far less details are shared throughout the proceedings because the parties have already agreed to how the divorce should move forward. Many details of the marriage (such as infidelity) become entirely irrelevant and are not displayed during the proceedings as they would be during a contested divorce. 

Less Stressful

When parties spend less time and money on attorneys’ fees and other costs of litigation, it is usually coupled with far less stress. Instead of worrying about being deposed or whether the other spouse will find out about a lie or unfaithfulness during the course of the marriage, the parties are able to agree to certain terms and move on with life. 

As you can see, an uncontested divorce can save both parties time and emotional stress, reducing lengthy conflict and bringing closure to both the marriage and the case. While an uncontested divorce may offer a few pros over a contested divorce, there are times when a contested divorce makes more sense or is necessary to protect each spouses interests or the interest of the children. 

What is a Contested Divorce? 

A divorce becomes contested when the parties are unable to agree on one or more of the issues in their case. In this type of divorce, the parties usually (and should) hire attorneys to represent their interests, and the issues will ultimately be presented to and resolved by the court. Contested divorces can be more costly and stressful than their uncontested counterparts, but the issues of a divorce can often be so complex that the parties cannot find an optimal solution themselves. Think about it – couples often acquire property together, pool their funds into joint bank accounts, raise children together, and make important sacrifices and life decisions together that have long-lasting impacts on both parties and their children. Coming to an agreement on these issues may be difficult or even impossible.

When a divorce is contested, the legal process becomes much more complicated. The court will be making the final decision, so all relevant facts and information need to be brought forth for the court to make an informed decision. In a contested divorce, the parties may need to complete:

• Divorce Discovery, where the spouses and other parties will provide important information through written discovery such as interrogatories, requests for production of documents, requests for admission, subpoenas, and oral discovery such as depositions. 

• Pre-Trial Hearings, where the court will attempt to resolve pressing temporary issues such as child custody and support and reduce the number of issues to be discussed at trial. 

• Alternative Dispute Resolution, such as attempts at mediation, settlement proposals, and negotiations, or even arbitration in some cases. 

• A Trial, where the court will issue a final order, resolving the remaining issues in a divorce case. 

These legal steps all come with additional costs and time requirements, but they are necessary to resolve contested divorces. It is usually not easy for parties to decide what is fair and best for all interested individuals of a divorce – especially if the parties have children. In these divorces, the court must make the final decision and settle the case so the couple can move forward.

How do I know if my divorce will be uncontested or contested?

It is important to be proactive and speak with your spouse about the details and potential issues of your divorce. Remember the four major areas – child support, spousal support, property division, and child custody. If you anticipate a disagreement over any of those areas or any case-specific issues, you may need to prepare for a contested divorce. It is also common for an uncontested divorce to become contested once a divorce action is filed. 

If either type of divorce is on the table for you, you should contact an attorney to help guide you through the process and offer advice. Having a lawyer on your side to advocate for your interests and present your case can help you achieve the results you want and set you up for success moving forward. Divorces can be complex and confusing, but having an attorney working for you will help you sort through the issues and fight for the best solution during a difficult time.