May 02, 2024

Uncontested Divorce Vs. Contested Divorce: Do You Really Have A Choice?


Divorce is a life-altering decision that comes with a myriad of emotions and an often-complex legal process.  As a result, do you really have a choice if your divorce proceeds on an uncontested or contested basis? The short answer is, you should always have a choice, but you and your spouse may not necessarily agree on what is best for you or your family.  The long answer requires a consideration of you, your spouse, what is ultimately at issue, and the unique nature of your family unit.  It also depends on the level of strategic planning you engage in as you initiate and move through the divorce process.  As a result, it is important to consider what each of the two extremes mean, the options that may lie in the middle, how the decision is made, and ways to strategically guide the process one way or the other.

Understanding Uncontested Divorce:

An uncontested divorce is a process in which both spouses agree on all aspects of the divorce, in its purest form– there are no disagreements. It is often a more efficient, amicable, and cost-effective approach to divorce. For this to be an option, it requires cooperation, compromise, and a lack of significant disagreements on the main issues.  However, there are concerns to using this approach, particularly when one spouse holds all the information, there is a lack of trust/transparency, and assets are concealed or improperly disposed of.  Additionally, challenges often present when there has been infidelity, domestic violence, or parenting issues that, for one reason or another, may require involvement of the court, and the like.  Even if your hope is to have an amicable divorce, it is important you understand your rights from a divorce attorney before discussing resolution of your case with your spouse so you know the options and what you may be giving up by proceeding amicably. Just as you would not want a doctor operating on you before you know what the problem is, similarly, you should not decide how to resolve your divorce before you know what you may be entitled to – even if you hope that it will be uncontested.

Understanding Contested Divorce:

A contested divorce occurs when spouses cannot agree on one or more aspects of the divorce.  In its purest form this means there are issues that cannot be resolved by agreement.   The issues in a contested divorce are often amplified by spousal misconduct, domestic violence, a lack of financial information/transparency, parenting disputes, a lack of trust, paramours, and the like. In this instance there is a need to protect/assert your rights to avoid a power imbalance (particularly where one party holds all of the information or asset concealment, or improper use of marital assets is/has occurred). The process is often more lengthy, more costly, and takes a greater emotional toll when compared to uncontested divorces.  In contested divorce situations representation by a divorce attorney is crucial from the beginning in order to protect and preserve your rights and plan a strategy to address each issue. 

The Middle Ground:

There are a significant number of alternatives between a fully uncontested divorce and a fully contested divorced, and most cases fall in this space. This usually is an area where the spouses agree on some issues but not all. In most divorces it is not uncommon for there to be some issues the parties cannot fully agree on.  This does not make the case fully contested nor is it uncontested.  The more amicable people are, the closer you are to the uncontested side of the equation and the more likely you are to reap the benefits of that approach.  Similarly, the less amicable people are, the closer you are to the contested side of the equation and therefore more likely to face the challenges associated with the same.

Making the Decision – It Takes Two:

Just like tennis, where two partners are required, both parties need to be on the same page to achieve an amicable divorce. If your spouse is unreasonable or not prepared to move forward amicably on an uncontested basis, your case will be pushed into the contested arena – unless you accept whatever unreasonable position, he/she may have (that is if one is taken, as sometimes when people want to be combative, they just fight for the sake of fighting since emotions are high). At the same time, if there is an information gap, a lack of trust, or a paramour, it may impede a party’s willingness to start out down the uncontested path as some due diligence may be needed to regain and re-establish information/trust.  This decision and path requires two people to be aligned to move forward on an uncontested basis or to be misaligned to proceed in any other way.

How to Guide the Path Forward:

While the lack of control on which path, your case may proceed may be concerning, there are, however, ways you can help guide your case from inception towards an uncontested or contested path.  With good strategic guidance from a divorce attorney who takes a customized approach to your case from the beginning, you can plan for both extremes and try to guide your case forward down the most desired path that best suits the needs of you and/or your family. For example, being guided to take steps up front to maintain an amicable relationship, avoid actions that may sound good in the moment but may send the case in the wrong direction, closing the information gap swiftly and cooperatively, and more, can lead to a more desirable, predictable, and controlled outcome for your case – even with someone who does not see eye to eye with you. Conversely, with poor guidance, no planning, or putting out the hottest fire first, you may unwittingly send your case down the wrong path.  Each party, each spouse, each family unit is unique. Each case and its approach should be tailored to effectively address the unique circumstances of each client with an aim to achieving his or her goals as efficiently as possible.

Consulting with an experienced divorce attorney that is skilled in strategic guidance is crucial, even in the uncontested divorce scenario, as they can provide guidance and ensure your rights are protected throughout the process and ensure your case does not stumble down the wrong path. Remember that divorce is a significant life event, and choosing the right path can make a world of difference in the outcome and your emotional well-being throughout the divorce process and for your future.


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