Is My Divorce Uncontested?
Many people come to our office asking, Is my divorce uncontested? But what does that mean?
An uncontested divorce occurs when both parties agree on every aspect and are willing to enter into written agreements, stating this. The parties must agree on everything – from dividing assets and debts to regularly scheduled parenting time. This may include agreeing to who gets the children on Christmas Eve annually. And further agreeing to questions like: Are you splitting the day or switching up even and odd years? If both of you agree on most aspects, but there are certain things neither is willing to budge on – the divorce will not be uncontested.
In an Uncontested Divorce, no fault is alleged.
There are two types of divorce: uncontested and contested. A critical difference between an uncontested divorce and a contested divorce is that in an uncontested divorce, no fault is alleged. The party seeking the uncontested divorce will merely state a divorce is being sought due to irreconcilable differences. Dissimilarly, in a contested divorce, a “fault” must be alleged. To name a few, the faults can range from adultery, inappropriate marital conduct, or chronic use of drugs and or alcohol. Most importantly, in a contested divorce, a reason must be provided.
Furthermore, when a divorce is uncontested, neither party is served. For our clients, we at Kane & Crowell, draft a Divorce Complaint for whichever party is “petitioning” for the divorce. Then, both parties sign a Marital Dissolution Agreement. This contract sets out the asset and debt division and explains alimony terms (if agreed upon). Therefore, this document is held to the same standard as a contract. If the parties have minor children, a Permanent Parenting Plan is also drafted. No document is filed with the court until all documents are prepared and signed by both parties.
How is a Contested Divorce unique?
It is important to note that an uncontested divorce does not dive into a rigorous process of sending for Discovery to your spouse. (The term Discovery refers to; Interrogatories and Request for Production of Document.) This discovery step is unique to a contested divorce. And it is a way parties can see what assets are owned, what debts are owed, the health of both parties, etc. When a spouse is unsure of the other’s income (whether it be for child support purposes or alimony purposes), discovery can be vital in determining income. Paystubs can be sought, tax returns can be reviewed, and a spouse’s spending habits can be investigated via bank and credit card statements. And this is NOT a step taken in uncontested divorces.
How does an Uncontested Divorce Become Contested?
The opposite of an uncontested divorce is a contested divorce. Typically, parties cannot agree upon all aspects of a divorce thus, a contested divorce must be filed. The party seeking the divorce would sign a Complaint for Divorce. As well as a proposed Permanent Parenting Plan if minor children are involved. These documents are filed with the Court, and the defendant’s spouse is “served” with process. Moreover, Process can be handled by either a sheriff’s department or a private process server. One “pro” to a contested divorce is once a spouse is served – a clock begins ticking. From this point, your spouse will have thirty (30) days to “respond” to the Complaint for Divorce – admitting or denying all allegations made. If he or she fails to comply with this thirty-day rule, the filing spouse can file a Motion for Default with the court.
Essentially, if your spouse does not comply with the thirty-day rule the court may grant the divorce to you (the petitioning spouse) on the grounds alleged. However, do keep in mind this does not happen often. Most defendant spouses will hire an attorney and file the appropriate response with the court. Moreover, once a contested divorce is filed, this is not a guarantee that the parties will go to a full-out “trial.”
Will I be required to share personal information in a contested divorce?
Most people settle before the trial / final hearing because it is EXPENSIVE. Leading up to trial, each party will likely receive discovery questions from their spouse (or spouse’s attorney). These questions are personal and include inquiries about income, assets and debts, infidelity, and parenting (if applicable). Questioning may also be asked about medical and health information, as the answers can be crucial in custody battles. Furthermore, discovery documents will be requested from both sides. Each party must be compliant, or the court will step in and compel parties to turn over specific documentation. Once both parties exchange discovery, the parties will then have to attend mediation with a neutral third-party mediator. The grand finale of a contested Divorce is going to trial.
Many Divorces Settle Before Trial
Most divorces will start contested. When parties seek a divorce, there is usually a reason. Whether it is infidelity or that the parties cannot agree on parenting styles or how to manage finances. This typically results in parties not agreeing on all aspects of asset and debt division (including parenting time). However, just because a divorce starts as contested it does not mean the parties will ultimately go to trial. Most parties end up settling in mediation or settling between negotiating attorneys. Therefore, this results in each party having some say about their future instead of letting a court of law decide their fate.
Need to learn more about the divorce process? Visit us @ https://www.kane-law.com/divorce-custody/#divorceprocess