Two options are possible for the dissolution of marriage: contested divorce or uncontested divorce. Although the procedural steps for filing for divorce are similar in both cases, contesting is generally lengthier and less affordable than ending a marriage amicably.
The basic difference between contested and uncontested divorce is who makes the final decision regarding divorce-related issues, such as child custody, child support, spousal support/alimony, and property division. If divorcing spouses are reasonable enough to come to an agreement on their own, it means that they have nothing for the court to decide, and their divorce is uncontested. If a couple cannot reach an agreement on one or more issues even with additional help from attorneys or mediation, their case goes to trial and becomes a contested divorce.
What to Contest in a Divorce?
Overall, issues contested in divorce can be classified into two broad categories: financial and child-related. The financial category includes division of community and/or marital property (house, joint bank accounts, insurance and pension plans, jewelry and inherited items, cars, boats, pets, lands, debts, etc.) and child support and/or alimony payments. The second category relates to custody of children, including physical and legal custody (where the child will live, who makes significant decisions related to health, education, vacation, visitation schedules, parenting time, etc.).
Do I Need to Know Beforehand Whether My Divorce is Contested or Not?
It depends on how you want to proceed and what resources you and your spouse have. If you’ve already discussed it with your spouse and agreed to apply for divorce, you can both aim for a cooperative approach rather than fighting. Consider having a do-it-yourself divorce without an attorney, as it would be a simple and even inexpensive option. If you hire a mediator or a lawyer, the willingness of both spouses to work together will help wrap up issues faster and lessen the cost of divorce.
However, if you are well aware of the imbalance of power and you know that your spouse will hire a lawyer, knowing the contested nature of your divorce beforehand will enable you to find additional resources to deal with the problems at hand. For example, you can find out if you qualify for discounted legal aid or find a divorce attorney taking pro bono cases in your state/county.
Overall, a divorce may start as uncontested and then become contested as the parties realize that they are unable to iron out their disagreements on their own. And vice versa. Therefore, it is quite impossible to truly know how your divorce process will go because there is a second party with their own will and disposition.
The Uncontested Divorce Process
Although the filing procedure is the same for contested and uncontested cases, the uncontested divorce process is more streamlined because the couple has fewer court hearings and negotiations with their lawyers.
The petitioner looks up a courthouse in their county and fills out divorce forms. If you’re having a DIY divorce, you can use an online divorce service to help you complete the paperwork. It is an inexpensive option for uncontested divorce that allows divorcing spouses to receive completed state-specific forms with detailed instructions on filing them.
According to court requirements, the petitioner specifies (1) grounds for divorce, (2) residency, and (3) information on children, property, and finances. Remember that US courts require the petitioner to make copies of the forms and sign them in a notary’s presence.
Next, the petitioner brings the completed divorce documents and two notarized copies to the court’s clerk for filing. After paid the court’s filing fees, the case will be assigned a case number. Next, the petitioner must serve the respondent with a copy of the divorce papers. The respondent has a set time to file an answer. Then the couple waits a mandated amount of time, depending on state divorce laws, while taking parenting classes and/or wrapping up their settlement negotiations.
The quickest divorces are possible in Nevada and Oklahoma, with a 14-day waiting period. Massachusetts has the longest waiting period of 180 days. Getting a divorce can take longer if a couple takes their time drafting a settlement agreement and solving custody and property issues.
When the waiting period is over, and the judge’s workload allows, the court schedules a final hearing that both spouses attend. If the paperwork is in order and the issues of custody, support, and property division are sorted out, the judge signs a divorce judgment and finalizes the end of the couple’s marriage.
The Contested Divorce Process
The contested divorce process starts similarly – filing the complete divorce forms with the court’s clerk – but usually, attorneys do it for their clients. Divorce attorneys keep tabs on schedules and all the paperwork required to help their clients win the trial. Whereas an uncontested divorce is no-fault, a contested case may have a specific ground for divorce, such as adultery, desertion/abandonment, mental illness, and other reasons. The list of grounds for divorce varies from state to state. Some states, like California, have no fault-based divorce option. Then spouses contest their divorce on the grounds of disagreement with child custody or property division.
Steps that spouses take in a contested divorce depend on the severity of their disagreements and miscommunication. First, each spouse needs to hire a divorce attorney. If they have a family attorney, only one spouse can be represented by him or her. The same lawyer cannot represent both spouses because of conflicts of interest. So the other spouse has to find a divorce lawyer for themselves. After filing for divorce, each legal team starts the information gathering process to collect testimonies from both spouses and third-party witnesses. At the early stages, attorneys prepare settlement proposals and conduct negotiations to settle the matter before appearing at a hearing.
If the judge and the spouses cannot reach a settlement at the hearing, the case goes to trial, and the legal teams prepare subpoenas, motions, and depositions for trial. At trial, the judge decides on all the issues that the spouses failed to agree upon. When determining child custody, support, or property division, the judge considers the length of the marriage, relations between the parties and other family members, each spouse’s age, health, earning capacity, and other aspects specified in the state statute.
Bottom Line
As is obvious from the brief description above, an uncontested divorce is more favorable in terms of time, money, effort, and nerves. Keep in mind that if you and your partner manage to iron out your disagreements, you can have a Do-It-Yourself divorce with quick and inexpensive results. If you both are on the same page as to the ending of your marriage, use the online divorce document preparation services of internet divorce companies to submit error-free paperwork with a 100% court approval guarantee.
