Contested divorce and uncontested divorce cases are specific legal terms that can that are often misunderstood. If you are thinking of filing for a divorce, it is best to research the difference and ask an experienced divorce attorney about ask about the difference between an uncontested and contested divorce. Often times, these two terms are misunderstood and the confusion can be problematic. By fully understanding the difference between uncontested and contested divorce, you can save you much time and possibly even money, in addition to you being able to intelligently choose the best case for your situation.
Ins and Outs of an Uncontested Divorce
An uncontested divorce is one in which parties mutually agree on all the major and minor aspects of their divorce case. These will include, but not be limited to custody, child support, property, debts, and alimony. There should be no disagreement between the parties, as both the parties will sign divorce documents settling all support, asset division, and debt division issues. Once the spouses reach a mutual agreement in regards to these aspects described above, divorce paperwork can be completed and filed with the court. If the spouses cannot agree on all the necessary issues, or if one spouse feels they are being taken advantage of and cannot get the information they need from their spouse to make an informed decision, an uncontested divorce might not be possible or the best choice. However, if the marriage does not involve any significant assets or debts, no minor children, and no support issues, an uncontested divorce is definitely something to consider.
While not always necessary, most people will seek the assistance of an experienced divorce attorney to assist with the paperwork. Even in cases where there are no minor children and no jointly owned assets, it is best to have an attorney to help with the paperwork so that the process can completed with as few (if any) court hearings and revisions as possible. Many people have had their divorce cases be dismissed for filling incomplete or documents incorrectly filled out. An experienced divorce attorney can help eliminate this as a problem, and you and your spouse can concentrate on the actual agreement and expediency of the case.
Important Divorce Considerations
Before the divorce petition is filed, it is important to keep in mind that the attorney cannot represent both spouses at the same time due to any potential conflict of interests. It does not matter if the case is an uncontested or contested divorce case. This is a frequently misunderstood court requirement, but makes much sense once considered. Additionally, it is never in the best interest to represent yourself in a divorce proceeding as it can result in undesirable legal and nonlegal consequences. Common mistakes made by those who choose to represent themselves include:
- filing the divorce paperwork in the wrong court, county or even state
- incorrectly filing out the divorce documents
- not fully completing the divorce documents
- having terms that conflict in the divorce documents
- having mathematical errors in the child support calculations
- incorrectly completing the Domestic Relations Financial Affidavit
- incorrectly or failing to obtain proper service of process
- failing to file necessary documents and forms with court
- failing to notice, or improperly providing notice to the other spouse for various court notices
- improperly signing, or failing to sign all the necessary divorce documents
Also, each county has its own requirements that it abides by and expects attorneys and even non-attorneys to know. Also, when representing oneself in a domestic relations matter, spouses are likely to make rash decisions in the “heat of the moment” that they will later regret. Emotions run high when dealing with domestic disputes and it is common for both parties to make mistakes when trying to file a divorce without legal assistance.
During an uncontested divorce, once the terms are mutually agreed upon, then the attorney is free to proceed in a direction he/she sees will be in the best interest of the client. For an uncontested divorce, divorce petition is generally filed in a county where one of the parties’ resides. The general rule is if each of the spouses reside in a different county, then the petition is to be filed in the county where non-filing spouse resides. However, it usually does not matter which county the case is filed in (assuming the parties are separated and live in different counties) so long as the case is uncontested and the parties consent in writing to the jurisdiction and venue where the case is filed.
Advantages of Getting Uncontested Divorce
Uncontested divorce offers the chance to end marriage quietly with less hassle and expense. Generally, even complex contested divorce matters can be resolved without a trial with the help of an experienced attorney and mediation. Divorcing parties will need to bargain with one another to come to an agreement. If the parties can at least both agree to attend mediation, most disagreements can be resolved with the court having to make the final decision. Therefore, most experienced divorce attorneys will recommend to their clients that the seek to mediate their case if at possible. If a case can be settled in mediation, what was, or could have been a contested divorce can not be resolved as an uncontested matter. The cost of mediator varies, but approximately most mediator’s fees start at a minimum of $250 per hour, which is a small cost to pay as compared to a long protracted contested divorce case.
The low cost is not, however the only advantage of an uncontested divorce. Although negotiation statements are filed with the local court, all agreements and disclosures made between the parties are not required to be put on public record. Only statements filed with the court are accessible to the public. Therefore, personal terms, negotiations and conditions may be kept between the divorcing couples. It is not available for public use, therefore minimizing the conflict that may be brought about by external factors. Lastly, the process of getting an uncontested divorce is faster and quicker. Fighting and harsh feelings are eliminated, and the marriage is terminated on the basis of a common ground. The couples sets all the conditions and lays out all the terms on the table. This procedure is faster as well because you do not have to wait for scheduled court appearance.
Disadvantages of Getting Uncontested Divorce
While getting an uncontested divorce may seem advantageous, getting an uncontested divorce has its own flaws. Uncontested divorce should never be an option when there is a history of domestic violence, emotional abuse, or some other sort of disparity in the power of relationship where one spouse can easily take an advantage of the other spouse. When there is even a slight chance of bickering and fighting, then the uncontested divorce may not the right option for you. Similarly, if one or both of the spouses are vested in keeping certain property or taking a larger share of the marital assets, then intractable disagreement may not be easily resolved in an uncontested divorce proceeding. In cases such as this, where there are disagreements the parties cannot resolve peacefully, a contested divorce is usually a more suitable course of action.
Ins and Outs of a Contested Divorce
A contested divorce is just what it sounds like; one or both spouses contest on some aspect of divorce issue. When a contested divorce is filed, the proceedings will generally take longer to complete. With contested divorce, spouses are required to go through several steps, prior to the divorce finalization. The process involves pleadings (complaint and answer), discovery, motions, often a temporary hearing, mediation, and potentially a trial. Domestic trials are usually before a superior court judge in the county the case was filed. If minor children are involved, then only the judge is in the position to determine the custody. Most people involved in a contested divorce will need the help of an attorney. While it is not mandatory, an attorney can help in drafting the required documents, eliminating unnecessary paperwork, helping with discovery, and helping their clients avoid costly mistakes that can be difficult, if not impossible to reverse.
Disadvantages of Getting a Contested Divorce
Taking a divorce to court means incurring higher costs and usually higher attorney fees. It also means that process is dragged on longer than expected, as parties are required to wait for the court-scheduled hearing. All these factors are to be considered before contacting an attorney to help you with your domestic matter. By their very nature, contested divorces usually take significantly longer than uncontested divorces to be resolved, and cost significantly more in the beginning and throughout the process.
However, their is one significant advantage to an contested divorce. No matter how much the other party may oppose the divorce or not cooperate, the person filing will almost always ultimately obtain what they are seeking, a complete, full and final divorce. So even if the other party does not agree to anything, and even if they want to stay married, a contested divorce will ultimately be decided with the end result being a dissolution of the marriage. If the parties do not have any significant assets, debts or minor children, this may be all the party bringing the divorce wants.
Other than choosing your lawyer, deciding when to fight and when to negotiate an agreement is the most fundamental question that needs to be answered. However, this determination cannot be made without truly comprehending the difference between uncontested and contested divorce. By exploring your options effectively, you can save yourself some time, money and unnecessary hassles and worry.
If you have any questions regarding the divorce process, call us at 770-609-1247 to speak with one of our experienced contested and uncontested divorce and family law attorneys.