What is the Difference between Contested and Uncontested Divorce?
Basically, there are two kinds of divorces: contested and uncontested (sometimes called a no contest divorce or a non-contested divorce). There is a vast difference between contested and uncontested divorce. However, the bottom line difference between contested divorce and uncontested divorce is simple. In an uncontested divorce a Settlement Agreement is signed by the parties before the case is filed with the court. If the divorce case is filed before the Settlement Agreement is signed, it is a contested divorce.
In an uncontested divorce, the spouses agree on the separation of their assets and debts (and all other issues) and the dissolution of their marriage. In a contested divorce, the parties may not agree on the terms of divorce, which parent should have custody of the children, how much child support is to be paid, how property and debts are divided or, sometimes, even whether there should be a divorce at all.
We have found that the parties’ attitudes make a tremendous difference between contested and uncontested divorce. If you both want to be fair and simply move on with your life inexpensively and with minimum stress, you can be successful with an uncontested divorce.
What are the Steps in Contested and Uncontested Divorce?
If the couple can agree to the terms and details of settlement agreement, they just need to make sure that the terms are legal and fair. After that, we file the necessary paperwork to request and complete the divorce legally. Essentially, in an uncontested divorce, the parties create their own divorce decree. This is a major difference between a contested and and uncontested divorce.
In contrast, a contested divorce is often lengthy, complicated and usually requires representation by a divorce attorney for each of the parties. If the divorce must be decided by a judge at a hearing or trial, the couple spouses must endure the stress and legal fees of what seems to be an endless and confusing process. Then, they both must comply with the decision of the judge instead of an agreement that they create for themselves. Both the process and the outcome for a contested divorce and an uncontested one can be very different.
The contested divorce process generally includes:
- Filing the petition. One spouse must prepare and file the divorce petition with the court. Then, a summons and a copy of the petition must be “served” officially (delivered) to the other spouse. This is usually done by a sheriff’s deputy or a “process server.” The served spouse then responds to the petition by filing an “answer” which must also be filed with the court.
- Discovery. Both spouses will be expected to provide information and documents necessary to prove and disprove elements of the case. This can involve gathering records, contacting witnesses, and taking depositions. Discovery can be long as six months from the date that the answer is filed.
- Negotiation. Once each side has an idea of the disputed issues and information that could come up in court. The attorneys begin to negotiate settlement proposals between the spouses. In most cases, the court will require that the parties with their attorneys engage in formal settlement discussions called “mediation.” Settlements are almost always the preferred resolution to contested divorces because they are less expensive and the divorce can be completed more quickly than by having a trial and there is no need for appeal. If an agreement cannot be reached, the case will proceed to divorce court for a trial by the judge, and possibly, a jury.
- Trial. Throughout the trial, both spouses will present witnesses, respond to attorney’s questions, and endure cross-examination by the other side. The judge may also ask some questions too. Most divorce trials do not involve a jury but even a trial by a judge can be lengthy and very expensive.
- Decision. At the end of the trial, the judge will decide whether alimony is to be paid and how much, which spouse receives which assets, how debt will be allocated, who will receive custody of the children, and how much support must be paid, whether one spouse must pay all or part of the attorney’s fees of the other spouse and many other similar issues.
- Appeal. If either spouse disagrees with the judge’s decision, he or she may file an appeal to a the Georgia Court of Appeals or even the Georgia Supreme Court. The appeal may not be decided for several months or even a year.
How are Uncontested Divorces Better than Contested Divorces?
The biggest single difference between contested and uncontested divorce is the cost. There are far fewer steps in an uncontested divorce compared to a contested divorce. Therefore, an uncontested divorce is faster, less complicated and costs much less than a contested divorce. If the divorcing couple have any dispute about their divorce, it is a good idea for them to seek an attorney’s advice on the specifics of their disputed issues.
Why do you need an Attorney for an Uncontested Divorce?
You are not legally required to have an attorney represent you in any divorce case. But, it is a very good idea for you to at least have an in-depth consultation with a divorce lawyer about the issues and circumstances of your case.
A good divorce attorney can assist you in understanding what is likely to happen if you have a contested divorce that must be decided by a judge and also help you work out amicable terms for a settlement. This will then allow you to file an uncontested divorce, avoid going to court and save you a lot of time, money and stress. Our uncontested divorce process is simple compared to a contested divorce. But you must follow the legal requirements of the law and the directions of the court.
If minor children are involved in the divorce, it is even more important that you have a divorce attorney help with the uncontested divorce process. Georgia has strict requirements for a Parenting Plan and for Child Support. If these two issues are not correctly handled in the divorce (including the correct paperwork), the divorce simply will not be granted until the problems are corrected. And, the judge usually will not be able to tell you exactly what you need to do to correct the paperwork if it is wrong. Judges cannot practice law (give legal advice) to the parties in a divorce case.
While there is a big difference between contested and uncontested divorce, the technical requirements are pretty much the same. For instance, there must be grounds for divorce and the divorce case must be filed in the correct court. If these or other technicalities are not satisfied, there will be no divorce until the problems are corrected. This is another reason why it is best to have a good divorce attorney working on your side.
Although we certainly can and do represent clients in contested divorce matters, our primary focus in uncontested divorce. At present, we represent clients in uncontested divorce cases in 45 Georgia counties.