What is Uncontested vs. Contested Divorce and How Does Each Work?
When we hear that a couple we know is divorcing, the first thing we usually think about isn’t the legal procedures ahead; it’s the lost love. Two people who once loved each other enough to spend their entire lives together have now, for whatever reason, changed their minds.
But divorce, in its literal form, is far more than that. It’s the dissolving of a multifaceted legal contract, probably the most complicated contract you will ever endeavor to unwind. As such, the couple must make a host of important decisions together. A few of the bigger ones include:
- Property: How to divide co-owned property (the marital home, accrued savings, retirement accounts, and more)
- Debt: How to split up debt (mortgage payments, credit card debts, student loans, and more)
- Alimony: Whether one spouse will pay the other alimony, and if so, how much and for how long
- Child custody: What to do with the children (joint custody, sole custody, legal custody, physical custody)
- Child support: Whether one spouse will pay the other child support
What is uncontested divorce?
When a couple agrees on all issues, their divorce is considered to be uncontested. They file a petition for divorce together (a joint petition), or one spouse serves the other. Then, they proceed with the rest of the paperwork.
What is contested divorce?
When a couple is unable to agree on one or more issues, the divorce is contested. This is more complicated, time-consuming, and expensive than uncontested divorce, and the couple often ends up putting the fate of their disputed issues in the hands of the court. Sometimes, contested divorce is unavoidable. But most people avoid it if they can.
Three primary downfalls of contested divorce
Contested divorces take more time.
From start to finish, because more steps are typically involved (including a trial and discovery), you can expect a contested divorce to take a lot longer than an uncontested one. In addition to the filing of the petition and response, each of you must find an attorney, go through divorce discovery, spend time negotiating, and prepare for and go through trial.
Contested divorces cost more money.
Because of the extra steps (like trial and discovery) we just mentioned as well as the pricey professionals you might have to hire (lawyer, CDFA, forensic accountant), the legal fees and other expenses quickly add up in contested divorce. Therefore, the final bill is higher than that of an uncontested divorce.
Contested divorces are more likely to render unwanted results.
When spouses cannot agree, the judge makes their decisions for them. And, as we all know, any time a third party steps in to make decisions for another person, the risk of dissatisfaction is real.
Frequently asked questions about contested vs. uncontested divorce
Is the waiting period for contested divorce longer than the waiting period for uncontested divorce?
Every state imposes a mandatory waiting period from the start to the finish of a divorce. For example, in California, the waiting period is six months and one day. In Texas, the waiting period is 60 days. Although the state-imposed waiting period won’t be longer because you file a contested divorce, you can expect the entire process to take longer from start to finish due to all of the extra steps you must take.
The only thing my spouse and I agree on is that we don’t want the hassle of a contested divorce. What can we do?
If the two of you wish to resolve your agreements without appearing before a judge, consider hiring a divorce mediator. Mediation is a popular choice because it saves you money and preserves at least some of your control over the situation. A professional divorce mediator can help you and your spouse negotiate your disagreements and come up with solutions you can both live with so you can avoid court.
There are three types of mediators: facilitative, evaluative, and transformative. Read more about them in our article: Which Type of Mediation Would Work Best for You? The Three Types, Explained
What if one of us doesn’t want a divorce? Can that be contested?
No. Although many issues can be “contested” in divorce, the desire to stay married is not one of them. If one member of a couple wants a divorce, the other member cannot legally force them to stay in the marriage.
