I Think I have an Uncontested Divorce - But Do I Really?
Many people come to our office and believe that their divorce is "uncontested", but what does that really mean?
An uncontested divorce means that both parties agree on each and every aspect of the divorce and are willing to enter into written agreements evidencing such. The parties must agree on everything - from division of assets and debts, to regular scheduled parenting time, to who gets the children on Christmas Eve every year - are you splitting the day, or switching up even and odd years? If parties agree on mostly all aspects, but there are certain things that neither party is willing to budge on - the divorce will not be uncontested.
Another key difference between an uncontested divorce and a contested divorce is that in an uncontested divorce, no fault is alleged. The party seeking the divorce will merely state that a divorce is sought due to irreconcilable differences. Dissimilarly, in a contested divorce, a “fault” must be alleged. The faults can range from adultery to inappropriate marital conduct to habitual use of drugs and or alcohol (to name a few), but at least one must be named.
If a divorce is uncontested - no party is served. We at Kane & Crowell would draft a Complaint for Divorce for whichever party is "petitioning" for the divorce, and then both parties would sign a Marital Dissolution Agreement. This is the contract which sets out the asset and debt division, specifically sets out alimony (if agreed upon), and 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.
It is important to note that an uncontested divorce does not dive into a rigorous process of sending Interrogatories and Request for Production of Documents (also known as “discovery") to the other spouse. This discovery step is unique to a contested divorce and is a way that parties can truly see what sort of 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 for alimony purposes), discovery can be vital in determining income. Paystubs can be sought, tax returns can be reviewed, and, furthermore, spending habits of a spouse can be investigated via bank statements and credit card statements. However, remember that this is NOT a step taken in uncontested divorces.
The opposite of an uncontested divorce is a contested divorce. Typically, parties are not able to agree upon all aspects of a divorce and thus a contested divorce must be filed. The party seeking the divorce would sign a Complaint for Divorce (and a proposed Permanent Parenting Plan if there are minor children involved). These documents are filed with the Court and then the defendant spouse is "served" with process. Process can be with a sheriff's department or with a private process server. One “pro” to a contested divorce is that, once a spouse is served - a clock begins ticking. They have thirty (30) days to “respond” to the Complaint for Divorce - admitting or denying all allegations made. If they fail to comply with this thirty-day rule, the filing spouse can then file a Motion for Default with the court. Essentially, the spouse is asking that the court grant the divorce to the petitioning spouse on the grounds alleged since the defendant spouse fails to answer. It is important to remember this does not happen often. Most defendant spouses will go and hire an attorney and file the appropriate response with the court.
Once a contested divorce is filed, this is not a guarantee that the parties will be going to a full out “trial” (also known as a final hearing). Most parties do settle before trial because, let’s face it, trial is EXPENSIVE. However, trial is the grand finale of a contested divorce. Leading up to trial, each party will likely receive discovery questions from their spouse (or spouse’s attorney), diving into income questions, asset and debt questions, infidelity questions, parenting questions (if applicable), as well as medical and health information which can be important in custody battles. Furthermore, documents will be requested from both sides, and each party must be compliant or the court will step in and compel parties to turn over certain documentation. Once discovery is exchanged by both parties, the parties will then have to attend mediation with a neutral third-party mediator.
Remember - most divorces will start out 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 (as well as parenting time). However, keep in mind that just because a divorce starts out as contested does not mean that the parties will be subjected to trial. Most parties do end up settling in mediation or settling between negotiating attorneys - resulting in the parties having some sort of say so as to their future as opposed to letting a court of law decide their fate.