Uncontested Divorce vs. Contested Divorce

What is the differences between an uncontested divorce (aka Joint Petition for Divorce) or a contested divorce?  We get this question everyday.  The true answer is the real difference is time and money.   A spouse cannot stop another spouse from getting a divorce.   Your spouse doesn’t need to agree to requesting a divorce.   You can get a divorce without their permission.  But, your spouse does need to agree to all the terms of a divorce for you to file an uncontested divorce. Uncontested divorce cost less and take less time, which is why couples would prefer a Joint Petition for Divorce.

If spouses agrees on “all” issues like child custody, division of assets and alimony then an uncontested divorce can be filed.   If not, then a contested divorce must be filed and a judge will make final orders.    Uncontested divorce average cost 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. Contested divorces average cost 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 your claims.  The served spouse has 20 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.   A 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.    Meanwhile your spouse has 20 days to respond to your documents.  If they fail to do so you can ask for a default divorce.  This is where everything you requested is granted.   Don’t get too excited your spouse has up to 6 months to have a “default divorce” dismissed and for the case to be re-opened.

Most contested divorce cases settle.   Only 10% or less actually go to trial.    If a case is going to settle there are two times which make it more likely.   Right before the case management conference, and right before trial.   Why do case settle here?   Our guess is because the attorneys and the clients are preparing for the upcoming hearing.  This preparation gives everyone a moment to assess the claims and decide whether they really want to go to court over them.