A contested divorce occurs when one or both spouses do not agree about how to resolve all of the issues that arise during a divorce. Or, if one spouse simply does not agree to the divorce, it is a contested divorce. The issues that most commonly lead to disagreement are the following:
- Child custody;
- Payment of child support;
- Payment of spousal support, or alimony;
- The division of assets and debts.
When both parties are unable to agree, they may seek resolution of their differences in a court of law. They would ultimately have to have a trial of the issues about which they disagree.
What Is an Uncontested Divorce?
An uncontested divorce is a divorce in which both spouses agree to the divorce and all issues involved in the divorce. These issues would include:
- Child custody and visitation;
- Whether one spouse should pay child support to the other;
- Whether one spouse should pay spousal support, or alimony, to the other;
- How the debts of the marriage are to be paid;
- How the assets, including a home, if the spouses own one, and retirement assets, e.g. pensions, are to be divided.
Of course, if the parties can agree on all of these issues, then their attorneys can draft a settlement agreement. The parties can sign the agreement, and the divorce can be finalized with only a court hearing. Uncontested divorce is usually less expensive, less time consuming, and generally less stressful, especially because numerous court hearings and a trial are unnecessary.
Who Is Eligible for Uncontested Divorce?
Uncontested divorce is usually an option for couples who can come to a mutual agreement about ending their marriage, as well as the issues that divorce entails, as noted above. Usually, one spouse initiates uncontested divorce paperwork. Then, if the other spouse agrees, their agreement can be documented in a written settlement agreement, and they can submit it to the court.
At a court hearing, at which the parties must appear with their attorneys, if they are represented by attorneys, the judge asks some basic questions, such as the following:
- Whether each party fully understands the terms of the agreement;
- Whether each party chose to sign the agreement voluntarily.
The judge usually approves the agreement unless they believe that it is fundamentally unfair to one party or one of the parties reveals something in the course of the hearing that leads the judge to believe they did not fully understand the agreement or did not sign it voluntarily.
State laws set a certain waiting period before a divorce becomes final. A person wants to consult their attorney about their state’s law so they know when their divorce is final.
Other procedures for obtaining a divorce may also be available to the couple, such as summary dissolution.
What Are Some Pros and Cons of Uncontested Divorce?
An uncontested divorce is usually preferable to a contested divorce, for reasons such as the following:
- Streamlined Process: The process for an uncontested divorce is more streamlined. Since the parties are in agreement, there will be less paperwork. No trial of contested issues is necessary. Court hearings are kept to a minimum;
- Less Public Exposure: Because an uncontested divorce does not involve any court hearings or trials that might be open to the public, they offer greater privacy;
- Fewer Errors: Because an uncontested divorce involves fewer court appearances and probably less paperwork, arguably there is less opportunity for error;
- Predictability: The ultimate outcome is more predictable in an uncontested divorce. The alternative to an uncontested divorce is a contested divorce in which there has to be a court trial of the issues on which the parties cannot agree. After the trial, the judge who presided at the trial provides a decision on the contested issues. It is impossible to predict with certainty how a judge is going to rule on an issue after a trial.
An uncontested divorce is generally preferable in most situations. In other cases, however, it may be unsuitable, and court proceedings are necessary.
What If a Dispute Arises During an Uncontested Divorce?
Sometimes, an issue arises in an uncontested divorce that may require the court’s intervention. For instance, one spouse is found to be concealing assets, or one spouse decides they no longer want a divorce. If this occurs, a person should consult their lawyer immediately, as court proceedings may be necessary.
Of course, if a person would like to have an uncontested divorce, but thinks that their spouse really has not offered them a fair settlement of the important issues, then they want to consider contesting the issue and going forward with a trial if necessary.
What Are Some Tips to Follow If I’m Considering Contesting a Divorce?
If a person believes that they should contest their divorce, they want to take the following into consideration:
- Make Full Disclosures: Do not hide assets. The court takes this seriously, and a person can be liable for hiding assets, and held in contempt of court. Honestly disclose accounts and the amounts in them, as well as other assets;
- Child’s Best Interest: In any kind of divorce, a person should put their child’s best interests first. Divorce can take its toll on everyone, especially children. Keep their well-being at the forefront. This is what a court will do in the end in any event;
- Consult an Attorney: An experienced family law attorney can be a valuable source of guidance and information.
What Types of Legal Issues are Commonly Contested in a Divorce?
Divorce typically involves several legal issues, and usually, the longer the couple has been together, the more complex their divorce may be. Other factors that could give rise to contested legal issues would be the following:
- Alimony, or Spousal Support: If one spouse is dependent on the other, then coming to an agreement about the payment of spousal support might be a contested issue;
- Division of Assets: If the couple have many assets, e.g. a shared home, or if they have significant interests in retirement benefits, such as pensions or retirement accounts, division of these assets could be contested;
- Division of Debts: If the couple has a significant amount of debt that has to be paid off, this could become a contested issue;
- Child Support: Whether one member should pay child support and in what amount is often contested;
- Child Custody and Visitation: Whether one parent should have sole custody or custody should be shared can be contested. If one parent has sole custody, then visitation arrangements may be difficult to resolve;
- Business Issues: If the parties have a family business or if one of the spouse’s is the owner of a share of a business, e.g. a partnership interest, the issues involved in separating the interests of the parties can be challenging.
What If I Have a Serious Dispute Over a Legal Issue?
If a person has a serious dispute concerning a legal issue involved in their divorce, they should consult a family law attorney and inform them of the issue and their concerns relating to it. A person should prepare material regarding the issue to hand over to their attorney and fully inform them of the facts related to it.
How Are Contested Divorce Issues Resolved?
If issues are contested in a divorce, the court holds a trial of the contested issues. Attorneys for each of the spouses present their evidence and make arguments to the court. After the trial, the court makes decisions about the issues that were tried.
In making its decision, the court takes into consideration the facts as shown by the evidence, of course, as well as the following factors:
- The length of time the couple was together;
- Whether or not children are involved;
- Each spouse’s individual relationship with the children;
- Quantity and nature of accumulated assets and debt;
- Whether or not the couple shared joint business endeavors.
This is not an exhaustive list. There are other factors that a court will consider, in part depending on the law of the state in which the divorce takes place.
What If My Spouse Will Not Sign the Papers?
If a person’s spouse refuses to sign a settlement agreement, the person may still obtain a valid divorce, but they have to go through a court of law. Their attorney can help them navigate their way to a divorce that involves dealing with an uncooperative spouse.
Do I Need a Lawyer?
Contesting a divorce is typically much more difficult than an uncontested divorce case. A less than cooperative relationship with your spouse can be emotionally challenging on you as well as your children. An experienced divorce lawyer can provide you with guidance on your case, and work diligently to protect your best interests in court.