Not all marriages are meant to last forever. This is especially true for unhappy couples. And that dissatisfied relationship could be due to any number of reasons such as domestic violence, adultery or simple incompatibility. Filing for divorce may not seem that hard, but, in reality, it’s emotionally demanding. That’s why couples looking to separate should be sure in their decision. Not all divorces are alike, but they do fall into two main types – uncontested and contested. Each is dealt with differently, and divorcing couples should be aware of those differences. In this way, they will be prepared and avoid unnecessary chaos.
This post by our family lawyers will help couples approaching divorce assess their situation and make an informed decision.
Uncontested vs Contested Divorce
What Is Uncontested Divorce?
An uncontested divorce, also known as a joint divorce, is one where there’s no defendant. Both individuals file for divorce with mutual consent. In this type, all decisions are made and agreed upon together which makes it a simpler and faster process than contested divorce. It can occur when the couple is sure of their decision to terminate their marriage and leaves no issues or consequences unresolved. Additionally, there’s no need to serve documents, nor is there a 30-day appeal period after the divorce judgment is granted. It’s not mandatory for both parties to file together; instead, either can initiate the divorce by filing a Statement of Claim for Divorce and Division of Matrimonial Property or Statement of Claim for Divorce. This statement of claim is then served on the estranged spouse personally who can respond in any of the following ways:
- File a countersuit claiming different facts than the plaintiffs
- File a Statement of Defense if facts are in dispute
- File a Demand of Notice, stating that they aren’t contesting the divorce and won’t file further documents but wish to have all the documents filed in the court proceedings
- Do nothing and wait to be noted in default where the estranged spouse won’t be allowed to take part in the case anymore and would have to pay what the plaintiff is asking for
An uncontested divorce is less stressful as most of the important issues such as child custody, child support, spousal support, division of property and division of debt are settled out of court. But everything may not go as smoothly as it sounds, especially when crucial financial and child-related issues are concerned. That’s why couples should be willing to compromise to resolve all their divorce problems if they want to end their marriage outside of a courtroom.
The Procedure: As has already been mentioned, one party can file a Statement of Claim for Divorce. Here’s how to go ahead with the procedure. The plaintiff will fill out the form and file it in lieu of a filing fee and serve it on the estranged spouse; the latter then files a response. Thereafter, the couple must observe a waiting period.
What Is Contested Divorce?
The opposite of uncontested divorce, a contested divorce is where one spouse contests some aspects of their divorce. This can be related to important matters like child support or custody, division of property or financial assets, or spousal support. This type of divorce is more complicated as there’s no mutual consent or agreement which makes it tricky and time consuming. This type of divorce usually involves many large legal fees. As the couple is unable to agree on the terms of their divorce, a judge is responsible for deciding on its final terms. In some cases, the judge may end up prioritizing concerns which do not align with that of the couple.
The Procedure: With this type of divorce, spouses must go through many steps before the divorce is finalized. Here are the steps involved.
- Preparing, filing and delivering the divorce petition
- Sending a response to the petition
- Hiring an attorney
- Engaging in gathering information from spouses and third-party witnesses (if any)
- Attending court hearings
- Settling negotiations between attorneys
- Preparing for trial
- Completing a court trial
- Appealing if the spouses dispute the trial judge’s decisions
If they are unable to resolve their issues during the settlement phase, the divorce judge may ask the couple to give their marriage another shot. If they’re still unable to work out their differences, they will be eligible for a divorce by moving on to the court phase. Both spouses must be present in court, and their lawyers may cross-examine witnesses before closing their arguments. After the trial is over, the court will issue a final order summarizing the judge’s decision and finalizing the divorce. This type of divorce is complex, and both spouses should definitely get expert legal advice from attorneys and know their rights.
Whether contested or uncontested, divorce is rarely easy; it’s often messier if children are involved. That’s why it’s always wise to consult an experienced attorney before filing. Spouses who have split by mutual consent and have no issues should file for an uncontested divorce as it’s simple, fast and cost effective. On the other hand, couples with major differences of opinions who are unable to come to mutually agreeable terms will have to choose a contested divorce. This is complicated as major decisions will be made by the judge that may prove unsatisfactory to both parties.