Did you know that in 2019, there were 2.9 cases of divorce per every 1000 American households?
Shocking as it may sound, there were more than 780,000 divorces between 1981 and the year 2018. As such, it’s irrefutable that marriage and divorce are expected outcomes in modern society.
If you are reading this article, it’s because you are seeking more information on divorce. Today, there are two main common types of divorce. The first is the contested divorce, and there’s the uncontested divorce. Most Americans don’t understand the difference between contested vs. uncontested divorce.
While no divorce ends without a contestation, it’s not always that the issues arising must end up in a court of law. However, some cases go the court’s way due to apparent disagreements. In this article, we shed more light on the difference between contested vs. uncontested divorce.
Contested vs. Uncontested Divorce
Divorce entails the legal dissolution of a marriage. In essence, this issue of legality is what often determines if a divorce case is contentious.
When thinking about a divorce, four issues often manifest, which could lead to a contest if unresolved. The issues include:
Division of Community and Marital Property
Regardless of how long a couple has lived together, the community and marital property have joint ownership. Marital property refers to all of the property a couple acquires during the span of their marriage. When a divorce happens, the determination and differentiation of community vs. separate property may be contentious.
Division of Debt
During a marriage, couples acquire different classes of assets. Within the same context, couples also incur short-term and long-term debts. One of the main factors when assessing contested vs. uncontested divorces is the issue of splitting debts.
State laws differ over the process of splitting such debts. However, in the end, this remains one of the most contentious concerns in a divorce.
The Custody of Children
In the case of divorce, the other common issue of contestation is the children’s custody. Most married couples have children. With children also comes the issue of upkeep. Factors such as medical and educational needs arise.
The most important issue when discussing custody is who will have sole responsibility for the children when it comes to guardianship. The issue of custody also raises the other common concern related to child support. Most times, the spouse who takes up the children’s custody expects the other partner to take up child support.
What Is an Uncontested Divorce?
Now that you understand the main issues in a divorce, it’s easier to explain the difference between contested vs. uncontested divorce.
An uncontested divorce refers to a scenario where both parties agree on property, debts, and custody without contestation. When such estranged couples have the same views regarding these three main issues during the divorce, the case may not need to proceed to a legal tussle.
When one spouse submits a divorce petition with the court, the court expects feedback from the other partner. The spouse receiving the divorce papers may respond to the petition in which they agree to the terms. Under such circumstances, the request is to the courts to grant the divorce within the same terms.
If the issue of splitting community property, debts, and determining the custody of children is resolvable outside the court, then this becomes an uncontested dissolution. The difference between uncontested and contested divorce is often the opposite of this scenario discussed above.
What Is a Contested Divorce?
A contested divorce is often contentious. In this scenario, one spouse may dispute and disagree with one or all of the three issues discussed above. A contested divorce may take longer to resolve, considering the intricacies that follow.
The spouses in such cases may disagree on one thing yet agree on others. However, given that the marriage is a package when divorce proceedings are in motion, any contention on a specific matter must be resolved in court. A contested divorce may last a month or even years.
One of the main reasons you need a divorce attorney during the divorce process is the probability of time wastage. A seasoned attorney can take care of all the divorce issues while you focus on work and family. Now that we have a basis of what contested vs. uncontested divorce is like, the next question is, what are the main stages during a contested divorce?
Steps in a Contested Divorce
The process of filing a divorce and getting a determination is systematic. The family courts have a straightforward procedure on how to commence and go through the process of divorce. Here are the most basic steps.
- Filing the Divorce Petition
This phase is necessary whether there’s a contest or not. The petitioner, in basic terms, requests the court to terminate the marriage. When the filing spouse submits the petition, they must include specific information.
The petition must show that at least one spouse meets the state’s residency requirements for enforcing divorce. The petition must also indicate a legal premise for the divorce. Further, you might need to furnish the court with any additional statutory information the court may require.
Whether the other spouse will agree or disagree with the petition may not matter at this point. You might need a lawyer’s help to determine issues such as the legal grounds for the divorce. In some cases, you may opt to go for the no-fault divorce, which may require legal advice from a reliable lawyer.
The most common legal grounds for divorce include adultery and neglect. In case of a no-fault divorce petition, you don’t need to state a specific reason for the divorce. The petition in such cases will be within the court’s discretion to determine fault.
- Requesting for Temporary Orders
The process of filing and awaiting judgment during court proceedings can be longer than most people anticipate. This is the reason most courts allow for temporary orders to help manage the waiting period better.
During the divorce proceedings, a stay-at-home mum may have a young one who might need to depend on the other spouse for financial support. It may be impractical for such a spouse to wait for the entire period to get the support they need.
When filing for a divorce, you have the liberty to ask the courts for temporary court orders on a few issues. In the case of an uncontested divorce, such court orders may not be necessary. However, you might need to file for child custody, child support, and spousal support in such instances in case of a contested court proceeding.
Most uncontested divorces don’t require temporary orders. The basis for temporary orders is to push for specific retraining orders on issues that both parties are unwilling to settle on amicably. In case of a contested divorce, matters such as temporary restraining orders on the property and the marital estate often come to play.
In case the underlying matters were uncontested at the time of filing the petition but have since become contentious, you can still file for temporary orders. At times, even when spouses agree on specific issues at the beginning, cracks may emerge at some point, a situation that may necessitate temporal orders.
- Serving the Petition
When dealing with both uncontested and contested divorce serving the other spouse is essential. This is more so in cases where the proof of service is a requirement. In case you fail to consider the right protocols when serving your spouse, you might get in trouble if the divorce becomes a matter of contest.
If you anticipate that the divorce process might end up being a contest, it might help to alert your family lawyer in advance. Most divorce attorneys know the process to follow to ensure the dully serving of such divorce papers. The approach will save you the trouble if your spouse could be looking for a way to complicate the proceedings.
The difference between a contested vs. uncontested divorce is notable in this case. If, when serving in the case of a contested divorce, you fail to serve the other party in person, this could become a matter of contention.
- Negotiation and Settlement
This is often the point of difference between a contested vs. uncontested divorce. When both parties have similar opinions on divorce and division of assets and debts, the settlement is often out of court. An uncontested divorce ends at the settlement stage, where both parties agree on the divorce’s modalities.
Contested divorces go beyond the settlement phase. The parties in such a case disagree during mediation, a situation that necessitates a divorce trial.
- Divorce Trial
Contested divorces often end up in a divorce trial. The outcome is unique compared to the uncontested cases, which don’t need to go all the way to the trial stage. In case your divorce case proceeds to the trial stage, it means that the spouses were unwilling to settle the matter at the divorce negotiations stage.
The judge at the trial stage has the final say on the outcome of the divorce proceedings. It would help to walk through this journey with a divorce lawyer by your side. This is more so if your divorce proceedings end up in the trial stage.
Know Your Way Around the Divorce Process
The divorce process is not only complicated but also frustrating. If you are dealing with a difficult spouse, it might be essential to prepare yourself in advance for the case’s full stretch. This informs the need to understand the difference between a contested vs. uncontested divorce.
Once you understand the basics and the systematic process of filing for divorce, you won’t have to worry about the complexities involved. All you need is a divorce lawyer by your side during the entire process.
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