Couples who are seeking a no-fault divorce must work together to draft a Marital Settlement Agreement spelling out their terms for separation. Perhaps unsurprisingly, spouses don’t always see eye to eye on issues like child custody and division of assets.
If you and your spouse can’t agree on certain aspects of your separation, your case is considered “contested” by the Court – even if you both wish to file for divorce and intend to live separate and apart. Here is the difference between a contested and uncontested divorce, and how each impacts the divorce process.
What is a contested divorce?
While either type of divorce can be stressful, a contested divorce can be especially complicated, lengthy and contentious.
Contested divorces are often sought on fault-based grounds (e.g. desertion/abandonment, cruelty, adultery, felony conviction). A couple’s “no-fault” divorce can also be considered contested if they simply cannot agree on aspects of their Settlement Agreement. Either way, a Court will require “adversarial proof” from both parties as they present their case before a judge, who will help settle the issues between the parties.
For this reason, contested divorce cases typically involve legal representation for both sides. The more time you spend in court, the greater stress and more legal fees you are likely to endure.
What is an uncontested divorce?
If, on the other hand, a couple wishes to avoid the stress and burden of a contested case, they can settle all their issues during their one-year separation period (six months if there are no minor children) and file for an uncontested divorce.
A divorce is considered uncontested if both parties agree in writing on all issues of separation, including but not limited to:
1. Financial division. The couple needs to figure out who receives control of any joint financial accounts and who will be responsible for assuming shared debt. This does not have to be a 50-50 split; however, both parties must agree that the assets and debts are divided fairly.
2. Child custody. If a couple has minor children together, they will have to determine a fair custody arrangement and visitation schedule. There are many factors to consider here, and because of the emotions involved, custody issues often spark disagreements among divorcing couples. Ultimately, you must determine what is best for your child(ren)’s overall well-being, regardless of how you may personally feel.
3. Child and spousal support. Once custody is determined, the parent who is not the primary caregiver will typically agree to provide some financial support to their soon-to-be ex-spouse for the child(ren), especially if there is a large disparity in their individual incomes. Even if a couple does not have minor children together, they may agree that one party provides spousal support for a period of time following the divorce. The specific terms of your support payments – if you opt to make them – will depend entirely on what you and your spouse decide in your Settlement Agreement.
4. Asset distribution. Spouses will need to divide their joint assets, which can include real property, vehicles and other assets purchased together. Again, this does not need to be a 50-50 split, so long as both parties see it as equitable.
Once these issues are settled in writing and the mandatory separation period has passed, a couple can begin the process of filing for divorce. Because you are presenting your own terms and a judge does not need to review the facts and decide what’s fair, an uncontested divorce can sometimes be smoother than a contested divorce, assuming both parties cooperate throughout the entire process.
Don’t face your divorce alone.
Many couples who are seeking an uncontested divorce decide to represent themselves in court to save the time and money involved in retaining an attorney. However, representing yourself shouldn’t mean going through the process alone.
My Legal Case Coach offers do-it-yourself legal case form packets to help you properly draft a settlement agreement and prepare for your case. Each packet purchase comes with a free hour of virtual coaching with an experienced Virginia attorney, and additional coaching sessions are available if you need additional help.
Even if your spouse decides partway through the process to retain an attorney and contest certain issues, MLCC can offer customized, ongoing legal guidance on your schedule. Schedule a free consultation to discuss your circumstances and get the DIY legal help you need.