The worst has happened. After months and months of fighting, crying, and rampant emotions, you and your spouse have decided to divorce. This decision was not easy to make but you both agree, it is time.
Or, maybe this was the final straw for you. Your spouse came home, yet again, drunk and abusive.
What ever your reason, we know the decision wasn’t easy. To make matters worse, you likely have contacted an attorney and were likely asked the confusing question, “Is this contested or uncontested?”
Most people don’t know the answer to that question, and that’s okay. We’re going to go through what each kind of divorce is and some of the advantages and disadvantages of each.
- Uncontested Divorce
An Uncontested Divorce means that you and your spouse agree to divorce and on the terms of your divorce. This kind of divorce is most useful for couples who have tried to work it out but at the end of the day, they both just want a divorce. Or, even if you don’t agree to divorce, the non agreeing party has accepted the divorce. You don’t have to fully agree on all points of the terms at the time of deciding to make it. You can meet with the attorney and he or she can help you hammer out the remaining sticking points as long as both parties are still willing to work together.
2. Contested Divorce
Where the couple either doesn’t agree on the divorce or the terms of the divorce, a contested divorce is appropriate. In cases where one spouse doesn’t know or doesn’t want a divorce, the filing will likely be contested. This is also appropriate where there are significant disagreement about major terms like custody arrangement, child support, property division, etc. and there is no hope of agreement.
3. The Process
The process for each type is entirely different. Uncontested is the easiest and the least time consuming. Contested takes time and work.
For an Uncontested Divorce, you, or you and your spouse, go to a lawyers office and discuss the terms of your divorce. You will talk about how you wish to handle property division, child support and custody (if you have children together), joint debt, and all matters relating to the severance of the marriage.
After this meeting, your lawyer will draft all the necessary paperwork. Though it is uncontested, the paperwork will mimic that of a contested divorce. A complaint, answer and waiver, and testimony will need to be filed. The spouse not being represented by your attorney will need to sign a Acknowledgement of Non-Representation. The attorney will also have a settlement agreement prepared that reflects the terms you discussed in your earlier meeting. Finally, if you have children, you will need to sign a custody affidavit and the Child Support Forms required by Rule 32 (If, you are in Alabama).
The lawyer will file all the signed and notarized paperwork with the court. Within about a month, the court will issue a final decree of divorce and a certificate of divorce. Then your divorce will be finalized.
For a Contested Divorce, ideally, you and your spouse will have your own attorney. You will meet with your attorney and discuss your objectives for your divorce. You will relate to your attorney what kind of arrangement you want for property, debt, child support and custody, etc.
Your attorney will file a complaint and testimony with the court. This will start the divorce process. Your spouse, or their attorney, will file an answer. This is routine. Don’t pay any attention to the allegations laid out in the answer. It is routine and has no real bearing on the case. In truth, the court rarely cares who cheated on who and how much. Absent abuse, these allegations will make no difference. If there are allegations of abuse in either the complaint or answer, it will affect custody determinations.
After the complaint and answer are filed, a hearing will be scheduled for both sides to be heard. Before the hearing, discovery may be conducted by your attorney. Discovery is just the process of gathering facts from your spouse. This can be done by asking open ended questions, asking questions merely requesting an affirmation or denial, or requesting documents or recordings.
After the hearing, a final determination will be made by the court and a final decree of divorce will be issued with the terms decided upon by the judge.
4. Benefits of Each
Whether your divorce is contested or uncontested is entirely dependent upon your situation and you and your spouse. But, as a general rule, uncontested is better than contested. Allow me to explain:
With a contested divorce, the judge determines all of the particulars of your divorce. He decides how much is paid in child support, who pays it, how the property is divided, if alimony is paid, all of it. An uncontested divorce gives you and your spouse the freedom to choose your own terms.
When a couple chooses their own terms, they are more likely to follow it. If both parties are happy with the agreement they made, they are less likely to return to court for contempt actions or modification. That doesn’t mean it never happens but it happens less.
If there are children of the marriage, uncontested is preferred because it shows that the mother and father can work together. The marriage may be over at the conclusion of the proceeding, but the parents are still bound by their children and will have to work together. Thus, working together to achieve a workable plan post divorce is desirable.
This writer recognizes that uncontested divorces are not always possible. Thus, avocation is through a contested divorce is the best option. When parties cannot work things out, sometimes one spouse needs an attorney to become their voice to advocate for their interests. Sometimes you can work together, sometimes you need someone to fight for you. In such a case, contested divorce is beneficial.
Divorce is not easy in any form, contested or uncontested. There are a thousand emotions you will go through and just as many questions you will have to decide. May this article be a helpful guide to you as you decide which route is best for you in the dissolution of your marriage.