Contested vs. Uncontested Divorce: What’s the Difference?

By US Legal Forms Team
5 min read
Table of contents

What is Divorce?

Divorce is a process where either one or both parties have decided to legally end a marriage. Divorce is also an agreement reached by both spouses regarding how their mutual property, finances, and custody and/or visitation of children will be shared after the finalization of the process. There are several types of divorce by which a marriage can be officially concluded. While we won’t discuss annulment, we will explore uncontested and contested divorce. While the divorce definition could be far longer, this sums up the process neatly.

If you already know the difference between a contested an uncontested divorce and are looking for the right forms, you can find them in US Legal Forms’s state-specic Divorce Package of forms.

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How Does Divorce Work?

While divorce laws vary from state to state, and occasionally may vary between municipalities, it is usually initiated by the filing of divorce papers by one, or both, spouses. These papers may also be known as a petition, especially in the case of an uncontested divorce. When the papers are filed, if uncontested, the procedure is typically kept between the spouses seeking divorce; and once the proper documentation is approved, the procedure is legally finalized. While a contested divorce may operate in a similar manner, from a bird’s eye view, instead of negotiating and cooperating between themselves, the spouses must insert lawyers into the fray to negotiate, finalize, and commit to the terms of their divorce. The process of a contested divorce, especially where child custody is involved, can take several appearances in court, thousands of dollars, and even years to complete. The moral of the story is: try to get along for the duration of the divorce process.

The process of how to file for divorce is rather simple, yet there are differences in the type of divorce you can file. A no-fault divorce is one where the spouse(s) are saying the marriage is broken beyond repair; whereas a fault divorce is one where the grounds for divorce must be proven. Such grounds can be: desertion, adultery, abuse, non-support, and more, including impotency in some states.

A divorce in which one partner wishes to divorce, and the other does not, typically throws the divorce into the realm of “contested”, automatically. However, even if both parties agree to divorce, it can remain contested due to a failure to agree on the terms of the divorce.

We have worksheets to help you organize and keep track of the process, you can find them here.

Contested vs. Uncontested Divorce

Any process which is uncontested, meaning both parties agree, or where one or more involved parties are unavailable to argue the terms, is typically much faster and more lightweight.   Therefore the uncontested definition is one in which both parties agree, typically in an out-of-court settlement. So what is an uncontested divorce?

An uncontested divorce, by relative terms, is a quick process; however, in relation to a divorce, nothing is necessarily quick. When the spouses file a joint petition, which includes the terms of the divorce and how things will be distributed, they are effectively settling their divorce out-of-court. While it is recommended to have lawyers and other advisors involved, it is not necessary. The reason an uncontested divorce lawyer is recommended is that the terms may be unclear from a legal perspective, and the terms are not necessarily enforceable.

In cases where the process was handled mostly outside of divorce court, the terms of divorce and children custody rights may not be enforceable if a new partner of one former spouse has different ideas of how things should go; or if the partner who is paying child support misses payments, it may not necessarily be something the other former spouse may legally pursue, even with clear documentation of divorce records.

Yet, if your shared estate and finances are simple, uncomplicated, and children are not involved, an uncontested divorce can be the most mutually beneficial option for both partners, especially if you’re still able to communicate and negotiate in a somewhat-healthy manner.

The cost of an uncontested divorce is typically the cost of documents, lawyers (if involved), and the county clerk filing fee. If you’re looking for uncontested divorce forms, you can find one for your state here.

Before we get into contested divorce, let’s discuss the average costs involved and various considerations to take into account for both procedures.

The cost of an uncontested divorce lawyer averages out to about $1,200, while a lawyer for a full-blown contested custody divorce case can be $5,000 or more (source). This amount can vary wildly based on firm reputation and whether the region is rural, suburban, or metropolitan.

Divorce and children never mix well, it is always recommended that children of divorcing parents speak with a psychologist or counselor. However, this also adds to the total cost of a divorce; while you can’t put a price on your childrens’ well-being, a contested divorce is typically very financially straining on both partners and simultaneously very emotionally challenging for their children.

Without adding external costs, such as therapy or other requisite services, the average total cost of an uncontested divorce in the United States is $1,500; whereas a contested divorce without mediation and litigation typically averages out to $12,000. However, a litigated and mediated contested divorce averages out to $25,000 (source). This average takes into account numbers ranging from a few thousand dollars to $100,000 or more. Because the numbers are weighted to lower numbers, it’s fair to say that statistically you can expect the total cost to be less than $25,000 for a complex contested divorce.

Now that we understand an uncontested divorce and the differences in costs, what is a contested divorce?

The contested divorce meaning, in short, is the result of a failure to clearly communicate and negotiate terms deemed fair and acceptable by both partners. As a result of this failure, by one or both parties, lawyers are required to assist in negotiations to reach terms that are mutually acceptable on behalf of their clients; while attending one or numerous court sessions to reach a final agreement, or determination by the court.

If the spouses are unable to come to a deal at the negotiating table, the divorce court may choose one of two options to split the once-shared estate. The first option is a clear, cut, and dry 50/50 split of everything combined; the second option is what the Magistrate or Judge deems fair, as per their understanding of the situation. For example, if one partner had a career and maintained a morally sound posture for the duration of their marriage while the other didn’t work while having the means to do so and behaved in an unbecoming manner, the Judge or Magistrate may decide that the unemployed spouse will not have access to the wealth accumulated by the other. While this is a shallow example, it can help you to understand the differences between the findings of courts based on the unique situations of every case.

The longer a divorce takes, the more expensive it will become. As with any service, every hour of a lawyer’s time is a minor fortune from your checkbook. The longer the proceedings go on, the bigger the check you’ll need to write. The process of how to get a divorce is simple and complex at the same time.

Of course, there are always caveats to every procedure; and while bureaucracy has a way of getting under people’s skin, the difficulty, cost, and lengthiness of a divorce is ultimately up to you, your spouse, and your mutual willingness to set aside your differences for the sake of concluding the procedure.

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