Legal questions: What is the difference between a contested and uncontested divorce?

Information to help married people decide how to go about choosing between a contested or uncontested divorce.

When a couple decides to call it quits, there are many issues that each party must address before legally dissolving their marriage. Parties must come to an agreement on such things as child custody, alimony, distribution of marital assets, etc. If a couple is able to amicably end a marriage, they can pursue an uncontested, or no-fault, divorce. If they are unable to totally agree on all of the issues, as most couples are, they must seek a contested divorce. When deciding whether to pursue a contested or an uncontested divorce, there are many issues to consider. It’s wise to consult individual state laws before making a decision.

Contested Divorce

In a contested divorce, one, or both parties allege that certain issues should be addressed by the Court rather than by the individual parties. The party petitioning for the divorce, known in many states as the petitioner or plaintiff, must provide the Court with the reason that they are seeking it. The opposing party can argue against the petitioner’s reasons for seeking the divorce and/or present his/her position on why the Court should (or should not) grant the divorce. The only special consideration given to the petitioner in a divorce is that he/she is usually able to present his/her case to the Court first.

What is the difference between a contested and uncontested divorce?

The reason that the petitioning party requests a divorce can be a point of contention itself. For example, opposing parties may “contest” when a spouse alleges that he/she is seeking a divorce based on spousal or child abuse, adultery, etc. The decision that a judge makes regarding the “reason” for a divorce can have a major impact on how he decides the rest of the case. In some instances, a couple can agree that they are getting divorced because of irreconcilable differences. In these cases there are no specific reasons given for pursuing a divorce and therefore, no one party takes full blame for it. When parties declare irreconcilable differences as the cause of a divorce, they are acknowledging that they don’t want a judge to decide who caused the divorce, but rather specific issues like child custody.

Since divorce is confrontational in nature, most divorces are contested. Most people who enter into a contested divorce chose to have an attorney represent them. If only one party is represented by an attorney, the other party can face a serious disadvantage. These divorces are usually a lot more expensive than those that are not contested because attorney’s fees and court costs can add up quickly. While contested divorces are more expensive and time consuming than their counterparts, they may be the best choice for parties who are not in total agreement. In this type of divorce, both parties are individually represented and can (either individually or through an attorney) raise arguments if they feel that any portion of a settlement agreement is one-sided.

Uncontested Divorce

Uncontested divorces are those in which a couple is in total agreement, and therefore the divorce does not enter into any type of litigation. The decision to enter into an uncontested divorce should not be taken lightly because the consequences of these decisions can have a lifelong impact. Parties entering into this type of divorce do retain their right to be represented by legal counsel. However, an attorney can represent only one side because representing both would be a conflict of interest. When deciding whether to enter into a non-contested divorce, many issues need to be taken into consideration. Perhaps the most complex issues surrounding divorce are those that deal with child custody and money.

A divorce agreement should clearly address every facet surrounding child custody issues. First, the parties must decide with who and where their children will live. They can either decide to have one parent act as the custodial parent (parent responsible for the child the majority of the time) or they can share joint custody. After making this decision, parties must decide on a visitation schedule that they both agree on. Agreements should be made in advance for special circumstances like birthdays, holidays, vacations, etc. It is also sometimes necessary for the non-custodial parent to stipulate whether he’ll allow the child to move to a different city or state.

Financial issues are also very important for parties entering into an uncontested divorce to consider. If they have children together, parties must agree on how much, if any, child support (or alimony) should be paid and when. It’s also wise to consider other incidental expenses like health insurance, school tuition, and emergencies. An itemized statement should be prepared showing how all joint property should be distributed. This list should contain EVERYTHING the parties own together- from the family home to the family dog.

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