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What is a Contested Divorce?


So, you and your spouse are calling it quits, and you’re anxiously wondering what your divorce case is going to look like. The first step in creating a game plan is understanding your options, and whether you will have a contested or an uncontested divorce is probably the most important factor in determining what kind of experience you will have.

You may have heard that the contested divorce process takes longer and is more expensive than the uncontested divorce process, and for that reason, uncontested divorce is something to strive for if possible. However, in a high-conflict breakup, your circumstances might dictate a different direction.

Let’s break down the difference between the two, and maybe you’ll be able to figure out which direction you and your spouse are headed, before the divorce complaint is filed.

What Is a Contested Divorce?

In short, a contested divorce is what takes place when a divorcing couple is not in agreement about things like child support, child custody, alimony, and the division of marital assets. A contested divorce may or may not include an allegation of fault on the part of one spouse in states that offer fault divorce.

While you and your ex will most likely each have to hire a divorce lawyer in the event of a contested divorce case, that does not necessarily mean that your contested case will conclude with an actual divorce trial. Even though many couples start out with major disagreements, approximately 95% of divorces are ultimately settled out of court. An experienced divorce attorney can serve as an expert negotiator and will share your goal of avoiding undue cost and frustration.

What Is an Uncontested Divorce?

In an uncontested divorce, both parties already agree on the terms of their marital settlement agreement when the divorce action commences.

In an uncontested case, neither you nor your spouse will need to hire an attorney, but if you do have a few questions, you will not have too much trouble finding a family law firm willing to give you some a la carte legal advice billed at their hourly rate.

In most states, you can get through all of the uncontested divorce proceedings, from filing the divorce petition to obtaining a divorce decree, without even setting foot in court. If you end your marriage with the help of It’s Over Easy, you won’t even have to fill out the divorce papers yourself.

The Contested Divorce Process

Since a contested divorce is generally much more complicated than the alternative, we thought a step-by-step guide would be helpful. Every contested divorce is unique as the marriage that led up to it, so you’ll want to speak to an actual attorney in order to get the lay of the land for your specific case. In the meantime, however, you can familiarize yourself with the general trajectory.

Step One: Identify Areas of Disagreement

The first step in your contested divorce occurs before you ever step into a law office, let alone a court. Consider this preparation for your first conversation with a prospective lawyer.

You’ll want to begin by talking to your spouse and identifying what settlement terms you actually disagree about. For instance, perhaps you both want custody and parenting time to be split up 50/50, but your spouse is asking for more spousal support than you would like to pay. Some of these issues may have been tensions throughout your marriage, but some areas of disagreement may come as a surprise to you.

It is important to have this conversation before you file a divorce complaint/petition (these are synonymous; different jurisdictions use different terms) because you will have an opportunity in the complaint/petition to ask the judge to make temporary provisions that will stay in effect until a divorce settlement is reached.

Step Two: Choose the Right Method of Dispute Resolution for You

You know how we said that about 95% of cases manage to stay out of divorce court? Well, this is your opportunity to create a path toward avoiding judicial intervention, even if you are experiencing a contested divorce. You may be relieved to hear that just because you and your ex are experiencing some disagreement doesn’t mean that you can’t cooperate with each other in order to find a mutually agreeable solution.

You might want to talk to your ex about whether they might be open to mediation, for example. Divorce mediation is typically lower-cost than each party hiring a regular old contested divorce lawyer, plus it has the added benefit of generally being a friendlier, more cooperative process.

Collaborative divorce is another great option if you and your spouse are willing to work together but you also would like to each have your own attorney. This process usually involves a lawyer on each side, one or two mental health specialists (either as a neutral mediator or in support of each party to the divorce), and one or more neutral specialists like a financial expert or a child advocate.

Collaborative divorce can be pricey, but it’s a great amicable option for trickier divorce cases, like those involving a shared business, or those for whom custody of a child with special needs is a key issue.

Finally, even if you and your spouse are not prepared to work so closely together, you might still be able to settle your contested divorce outside of court. Divorce attorneys are able to negotiate on your behalf, and going to court should be seen as a last resort if they are not able to reach an agreement with considerable time and effort.

Step Three: Obtain a Final Judgment

After you’ve figured out the terms of your divorce in or out of court, you’ll need to obtain a final judgment. This is a document that the court signs off on which formalizes the end of your marriage. 

All divorces, contested and uncontested alike, conclude with this final piece of paper. As noted above, you usually do not have to physically go to court to get a judge’s signature, but some jurisdictions require you to make your one and only court appearance at this time.

Step Four: Breathe a Sigh of Relief!

As much as everyone would like to have an easy, breezy uncontested divorce, it isn’t always possible. Contested divorce can be scary, so take a second to congratulate yourself for making it through the process. Now, on to bigger and better things!