What You Need to Know About Contested and Uncontested Divorces
A question that we divorce attorneys get every day is to point out the differences between an uncontested or Joint Petition for Divorce and divorce that is contested.
In an uncontested divorce, both spouses are in agreement on the terms included in the divorce petition. When such an agreement is not possible, the spouses will need to go through a contested divorce court process so that a judge can make the decisions needed for the divorce to be final. You file a joint petition for divorce in the case of an uncontested divorce. In a contested divorce, one of the spouses has to file the divorce papers and have them served to the other spouse.
Issues that are involved in a divorce are child custody, child support, how marital assets are to be divided, and often, alimony. If both spouses are in agreement on these issues, the divorce is not contested. If they are contested then the divorce process goes forward in court and it is the judge who makes the final decision on each issue or convinces both the spouses to reach a settlement. It costs less and takes lesser time for an uncontested divorce. This kind of divorce, a Joint Petition for Divorce, turns out to be cheaper and faster because there are no court proceedings to go through.
One spouse cannot prevent the other from getting a divorce. But the whole process can be prolonged by one of them not agreeing to the asked for divorce terms. The spouse asking for the divorce sets terms for the divorce in consultation with his or her lawyer, and if the other spouse does not agree to them, the case needs to go through a trial in front of a judge who will make the final decision on each of the issues.
If an agreement is reached on all issues, especially regarding the division of assets, child custody, as also alimony, then you can file a petition for an uncontested divorce. In such cases, the average cost for this uncontested divorce is $1,500 and may take up to 30 days.
Uncontested divorces have to go through a basic process. One of the spouses hires a divorce attorney to draft the needed documents. Both the spouses then have to go through the documents, review them, and come to an agreement on all the terms. The major terms that require the concurrence of both spouses are child support, child custody, dividing of assets and liabilities, as also alimony. Once the agreement is reached, the documents need to be reviewed by a judge. Approval by the judge leads to a final divorce decree being entered.
If the spouse does not agree, then a divorce suit needs to be filed, leaving it to a judge to make the final decision. The average cost of a contested divorce can be $5,000 for each of the spouses and take on an average of 6 months to be finalized. In some cases, costs can go as high as $15,000 per spouse and the case can drag on for a year or more.
A contested divorce has to follow a basic process. One of the spouses appoints a divorce lawyer to file the needed divorce documents in court so that the case can be opened. These documents are then served to the other spouse. This gives the other spouse the required notice for the divorce and the associated claims. 21 days are allowed for a response.
A CMC or case management conference is then scheduled. This leads to the first hearing in court, 90 days after the filing of the documents. At this hearing, the judge passes temporary orders on things like who will live in the house, have child custody, financial support, and other issues.
This then leads to a process called discovery. Discovery allows both sides to request documents and hold depositions. The attorneys on both sides use this process of discovery to gather the evidence that they need for the trial that will come up. During the trial, all documents are shared, and witnesses are brought in for testifying before the judge. There is no jury involved in these trials and they take place before a judge. Once both attorneys have presented their case, it is the judge who makes a final ruling on each of the claims before filing a final divorce decree.
In fact, a contested divorce has other things in it than what has been explained earlier. What we had given there is a simplified version of this process for a contested divorce. The detailed view will require you to look at things like an FDF or financial disclosure form that needs to be filed when the case needs to be opened. These documents explain all your finances. You will also need to file bank statements, pay stubs, and tax returns. These disclosures come under Section 16.2.
In most contested divorce cases, settlements are arrived at. A bare 10% of them actually end up in the trial court. Cases can be settled at two times. These can be either before the case management conference or just before the case goes to trial. Why are cases settled at these times? This is probably because both clients and their attorneys are preparing for trial. Due to this, all the parties concerned have the time to assess the merits of their respective claims.
In a majority of cases, there is really not much to argue over, but in spite of this, one of the spouses refuses to sign up for an uncontested divorce. This leads to a situation where divorce lawyers using a method known as a stipulated divorce or a negotiated divorce. The attorney will file for a contested divorce and then try to reach out for a settlement. After the filing of a contested divorce, the opposite spouse is required to respond in 21 days, and failure to do so can result in a Default Divorce Being given.
A settlement letter is quite often part of the documents being served that can cause the other spouse to think. This letter spells out the specific terms for the divorce. The spouse who is served then has two options. They can appoint an attorney for thousands of dollars or come forward to discuss the terms offered in the settlement letter. If there are no real issues o which there is disagreement, then terms can be agreed upon.