Uncontested Divorce vs. Contested Divorce

Posted: 17 September, 2019

What is the differences between an uncontested divorce (known as Joint Petition for Divorce) or a contested divorce?  We get this question everyday.

The uncontested divorce is where both spouses agree to all the terms of the divorce.   An contested divorce is where the spouses cannot agree and must go through the entire divorce process to get a judge to make the final decision.  The uncontested divorce  is accomplished by filing of a joint petition for divorce.  A contested divorce is accomplished by filing the divorce papers and then serving your spouse with them.

Uncontested divorces are easier because both spouses agree on all the issues such as child custody, child support, division of marital assets, and alimony.    Contested divorces are harder because you proceed through the divorce process until a judge makes a final decision, or you and your spouse reach a settlement.  Uncontested divorces cost less and take less time. This is why a Joint Petition for Divorce is the preferred method.

A spouse cannot stop another spouse from getting a divorce.   But, your spouse can prolong the divorce by not agreeing to the terms of the divorce.   You spouse can either agree to the terms of the divorce proposed by your divorce lawyer, or the case will go all the way to trial for a judge to make the final decision.

If spouses agrees on “all” issues regarding child custody, division of assets and alimony then an uncontested divorce can be filed.   The average cost for an uncontested divorce  is $1,500, and takes about 30 days.

Here is a the basic process of an uncontested divorce. One spouse hires a divorce lawyer to draft documents.  Both spouses review the documents and agree to all the terms.   The major terms spouses must agree on have to deal with child custody, child support, dividing the assets,  dividing the debts, and alimony.     If both spouses agree then a judge is asked to review the documents.  If the judge approves then a final divorce decree is entered.

If your spouse doesn’t agree you simply file a divorce and the judge will make the final decisions. The average cost of a contested divorce is $5,000 per spouse, and takes about 6 months.    Some contested divorces can cost $15,000 or more per spouse and take 12 months or longer.

Here is the basic process of a contested divorce. One spouse hires a divorce lawyer to file divorce documents with the court to open the case.   They serve the documents to the other spouse.   This gives the spouse notice you are requesting a divorce, and notice of your claims.  The served spouse has 21 days to respond to the documents.

A case management conference (known as a CMC) is scheduled.  This is most likely your first hearing in court and is held about 90 days after the documents are filed. At this hearing the judge makes temporary decisions on custody,  financial support, and other temporary orders like who will live in the house.

Then discovery is opened.  This means both sides can request documents and hold depositions.   Both sides’ attorneys use discovery to gather evidence for the upcoming trial.  At trial documents are shared and witnesses testify before the judge.   Family court is a judge trial, not a jury trial.  After both attorneys have presented their evidence a judge makes a final ruling on all the claims and files a final divorce decree.

Actually, a contested divorce has quite a few more moving parts than explained above.  The above diagram is a simplified version of the contested divorce process.  Here is the detail view of a contested divorce. A financial disclosure form (FDF) must be filed when you open your case.  This document explain your finances.    You also need to disclose certain documents like tax returns, pay stubs, and bank statements.  This is called 16.2 disclosures.

Most contested divorce cases settle.   Only 10% of divorce cases actually go to trial.    If a case is going to settle there are two times which it is more likely to happen.   Right before the case management conference, and right before trial.   Why do cases settle here?   Our guess is because the divorce attorneys and the clients are preparing for the upcoming hearing.   This preparation gives everyone a moment to assess the merits of their claims.

Stipulated Divorce

In many cases there really isn’t much to argue over but the other spouse will not sign an uncontested divorce.  In this situation divorce lawyers use a method called stipulated divorce.  file a contested divorce, and attempt a settlement.  By filing a contested divorce the other spouse only has 21 days to respond or we can file a default.  If they don’t respond in 21 days we  file a default divorce order.

To get the other spouse thinking of a settlement we attach a settlement letter to the documents.   The letter outlines specific terms for the divorce.  Now the other spouse has to do something.  They can spend thousands of dollars hiring a divorce attorney to respond, or they can reach out to their spouse’s divorce attorney to discuss the terms outlined in the letter.  In cases where there really isn’t anything to fight over a stipulated divorce is a method that works.

Need to Know More About the Contested Divorce Process?  Contact the Right Divorce Lawyers at (702) 914-0400.