Uncontested vs. Contested Divorce

people signing papers

While situations where the spouses are amicable and agree on everything, from division of property to parenting time, there is no procedural difference in proceeding with the filing of your dissolution of marriage and the necessary legal steps that must be taken. All cases must be filed with the court, as only a court can grant a divorce. However, uncontested divorces can be quicker, more cost-effective, and also reduce the stress that comes with divorce proceedings. With the initial filing, the spouses have the option of filing the documentation jointly as “co-petitioners.” If you do this, you save the additional step and cost of having the other spouse served with a copy of the initial documentation.

After the initial filing, the initial status conference, and the completion of both spouses’ mandatory financial disclosures, whether the case is contested or uncontested has a significant bearing on how the case will proceed thereafter.

What Happens If My Divorce Is Contested?

When spouses cannot reach an agreement on all applicable issues related to the marriage—division of property, spousal support/maintenance, and the allocation of parental responsibilities, including parenting time and decision-making, as well as child support (if you have children)—then the divorce is considered "contested.” This is the case even if the spouses are in agreement on most issues.

In the case of a contested divorce, the only way for spouses to resolve the contested issues is to present those issues in front of the court. This is done at a permanent orders hearing, where both spouses present evidence and testimony (both likely by themselves and other witnesses) in support of their respective positions on any and all contested issues. Following the presentation of evidence and testimony by both sides, the court will then make a decision on all contested issues.

What Happens If My Divorce Is Uncontested?

If your divorce is truly uncontested, meaning both sides have reached an agreement on all applicable issues to the marriage, those agreements will be documented in writing (called a Separation Agreement for property and maintenance and a Parenting Plan for child-related matters). After you reduce all those agreements to writing and both spouses sign, the Separation Agreement and/or Parenting Plan are submitted to the court.

If the spouses do not have children, the court may then review the Separation Agreement and grant the divorce by affidavit rather than requiring the spouses to have a hearing in front of the court. The court can also grant the divorce by affidavit if the spouses have children AND both spouses are represented by counsel. The affidavit is another document signed by both spouses, which represents to the court that all requirements for the issuance of a divorce decree have been met. This includes the 91-day residency requirement, the passage of the 90-day waiting period, reaching an agreement on all issues, and establishing that the marriage is irretrievably broken.

If the spouses have children, but either spouse is not represented by counsel, then the court will require the spouses to set a non-contested hearing to review the Separation Agreement and Parenting Plan with the spouses. This is largely to ensure that the non-represented spouse(s) fully understand everything that has been agreed to.

Even if proceeding uncontested, it is important to have legal representation to protect your interests and legal rights and to prepare for any complexities that may arise (or do arise) based on your unique set of circumstances.

To speak to a qualified legal professional at Solutions Based Family Law, contact us online or call us at (720) 463-2232.

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