28
- November
2016
Posted By : Nabila
Difference Between Contested and Uncontested Divorce
When marriage can no longer work, the parents and children are often faced with a storm of stress. A lot of issues must be discussed before dissolving a marriage. Many are the times when you must hire a divorce lawyer. In most states, two types of divorce available: contested and uncontested. The kind of divorce that the couple chooses determines the court costs, time for completion of the divorce, residency requirements, and legal expenses. Therefore, separating couples need to know the differences between the two divorce types.

Contested divorce
A contested divorce is where the husband and wife cannot agree on one or more of the separation aspects. For instance, they may be unable to agree on how much alimony is to be paid, or the parenting schedule. Whatever the issue is, if a divorcing couple cannot agree on an individual issue, the judge should gather evidence so as to make a decision.

During a contested divorce, the separating couples go through various steps before the divorce is finalized such as:

  • Prepare, file and deliver the divorce petition (this is the legal paperwork that specifies the grounds for wanting the divorce).
  • Reply to the petition
  • Find an attorney
  • Start the “divorce discovery” process. It is the information gathering procedure, which involves a variety of legal processes to find out information from your partner and a third party witness. (Such as depositions, written questions, and subpoenas).
  • Pre-trial legal motions and hearings
  • Settlement negotiations between the attorneys
  • If agreement does not work, trial commences
  • Complete the court trial
  • If dissatisfied with the result, you can file for appeal

The judge will always ask that the couple resolves the issues out of court. However, if this is not possible, the trial must begin. During the trial, both partners present their evidence and witnesses. The lawyers will cross-examine the witnesses and present the closing arguments. At the end of the trial, the judge will issue the Final order memorializing all the decisions that the judge has made. This marks the end of the divorce; that is if no appeal is made.

Uncontested divorce
An uncontested divorce is where the partners filing for divorce agree on all the issues raised during the divorce. Such issues include child custody, division of debt, payment of child support, and division of marital property. In such a case, the court officials will usually process the divorce without having the spouses appearing in court. However, note that you cannot file for an uncontested divorce. Rather, the case becomes uncontested after the partner has been served and decides not to respond. The failure to reply makes the divorce uncontested.

Steps involved during an uncontested divorce:

  • The first step is for the spouse who wants the marriage to be dissolved to file a summons in court. The summons is served to the other spouse, who is known to the defendant.
  • If the defendant is okay with the stipulated divorce terms, then the plaintiff’s lawyer may file the case in court so that the divorce can be completed.

Contested or uncontested- which is better?
None of these two is the best. The couple determines the choice. Usually, if the partners can agree, the uncontested divorce is easier. If the partners cannot agree, a contested divorce is the best option. However, an uncontested divorce is more preferred because it is less straining both financially and emotionally.

Whichever option you go for, ensure you hire a qualified and experienced attorney to help you handle the case. The Matrimonial Home website has more resources available if you would like to learn more information.

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