Contested vs. Uncontested Divorce
One of the most common questions surrounding divorce proceedings is: What is a contested divorce, and how is it different from an uncontested divorce?
A contested divorce is a divorce where the spouses disagree on how the divorce is settled. Some of the issues of contention that are often causes for a contested divorce include the following:
- Alimony or spousal support payments
- Custody of any minor children
- Division of previously shared assets or property
- Living arrangements
If you think you are dealing with a contested divorce, it's best to get the advice of a legal expert right away—you can find one in your area here.
An uncontested divorce is a divorce where both spouses agree on all essential issues related to their divorce. These are often referred to as "material" issues. There are various benefits of undertaking an uncontested divorce over a contested divorce. An uncontested divorce is a much simpler legal process. There will also likely be far less cost associated with lawyers' fees (and court fees) and a quicker resolution.
Some signs that you may be facing a contested divorce might be:
- A difficult relationship with your spouse. Your intuition suggests that your spouse is unlikely to agree with you on substantial matters related to the imminent divorce.
- Being served divorce papers without prior knowledge of any divorce proceedings.
- Complicating factors like custody of minor children, shared property or living space, or unresolved personal issues.
What you need for an uncontested divorce depends on where you live and where you got married.
Some states may have strict eligibility requirements regarding uncontested divorces. In Texas, for example, divorces involving spouses who share children, who share property to be divided, or who are engaged in a bankruptcy case cannot be classified as uncontested.
In New York, most of these requirements are not in place, but you must satisfy one of the state's residency requirements, which generally require at least one spouse to live in New York for 1-2 years before filing for divorce. In Georgia, one or both spouses must live in the state for at least six months before filing a divorce.
If your spouse is not convinced that an uncontested divorce is in their best interests (or the best interests of any dependents, from their point of view), negotiation may be the first step toward an uncontested divorce.
Once both spouses agree, you can usually file a joint petition for divorce with one party acting as the plaintiff (the spouse serving the papers). Filing fees vary. In New York, for example, filing fees for divorce are around $350.
Lawyers' fees may range from $500 to $1,500 in most instances of uncontested divorce. Most states have a divorce packet containing all paperwork to be filed with the local clerk's office. However, it's often helpful for both spouses to consult with a divorce lawyer to help them navigate the necessary paperwork.
While it is possible in some cases and in some states to file and serve the paperwork necessary for an uncontested divorce without a lawyer, it is strongly recommended that you secure legal representation.
An experienced divorce attorney can streamline the process and answer any questions about the steps necessary to file an uncontested divorce. Further, your lawyer may be able to help defend your best interests if an uncontested divorce becomes more complicated than it appeared at the outset. A divorce lawyer and all related fees in an uncontested divorce often cost $1,000 - $2,000. However, this is much cheaper than fees associated with a contested divorce (between $5,000 and $15,000).
Sometimes people confuse contested/uncontested divorce with fault and no-fault divorce. A no-fault divorce refers to the reasoning behind the divorce itself, and “no fault" refers to the attitude of the spouses involved in an upcoming divorce — neither holding the other responsible for the dissolution of the marriage. Therefore, a contested no-fault divorce is certainly possible, with spouses not blaming one another for the divorce yet not being able to agree on the particulars of the divorce proceedings.
A collaborative divorce is similar to an uncontested divorce, which does not necessarily require the involvement of lawyers. But collaborative divorce does involve divorce lawyers representing each spouse. These attorneys and their clients collaborate to come up with a suitable solution regarding any details of the divorce and work to negotiate a satisfactory outcome for both parties on issues such as custody of children and the division of assets.