Uncontested vs Contested Divorce
Divorce. When what initially may have seemed impossible becomes a reality, you likely have a lot of questions and concerns.
How does a divorce work? What if we don’t agree on everything? How will this affect our kids? How long will it take?
You may have heard of two major types of divorces – contested divorces and uncontested divorces. Let’s take a look at the differences between those types of divorces and how the process can go for each scenario.
The Differences Between a Contested and Uncontested Divorce
The difference between the two main types of divorces is quite simple. A contested divorce happens when one or both parties “contest” (or oppose) one or more terms. An uncontested divorce is when both spouses agree on all terms.
Uncontested divorces
When both spouses agree on all terms, the divorce process is easier and more straightforward. However, there are still several documents that need to be filed and timelines that must be met throughout the uncontested divorce process.
First, one spouse must complete the initial paperwork and file it with the district court. Then, the other spouse must be served with divorce papers within 120 days of submitting the initial paperwork.
Both parties would file a stipulation, or a written document, outlining the agreed terms of divorce. If child custody is involved, both parents may be required to attend a divorce education class before the final documents are filed. Finally, once all the steps have been completed, a judge will review and sign the divorce decree.
Contested divorces
The contested divorce process is longer, more complicated, and more expensive. Since there is a disagreement on one or more issues, a contested divorce must go to trial to be settled by a judge.
When mutually beneficial divorce terms can’t be agreed upon between both spouses, a judge must make the final order. This final and binding decision may not be in the best interests of the children involved and will probably be less than favorable for one or both spouses.
Thankfully, even though many times both parties don’t initially agree on everything, the vast majority of divorces are resolved before turning into a lengthy public court battle. Both spouses can come to an agreement on their own, or they may need the help of a mediator to settle the terms before going to divorce court.
It is no wonder why divorce is often considered one of the most stressful situations in a person’s life. That’s why, at Brown Family Law, we do our best to help our clients feel heard, understood, and confident – even during such a difficult and stressful time.
Terms Need to Be Settled
Before a divorce can be finalized, there are a number of terms that need to be settled or agreed upon. In an uncontested divorce, both spouses come to an agreement on all terms either on their own or with the help of a mediator. In a contested divorce, the terms may be decided by a judge at trial.
The terms in question may vary depending on your specific circumstances (underage children, an existing prenuptial agreement, etc.), possibly including the division of debt, property, and assets, as well as child custody, support, and alimony.
Debt
While debt is one of the major stressors that leads to a breakdown in a marriage, it can also further complicate the divorce process.
Examples of debt include car loans, mortgages, credit card debt, and lines of credit. For debts such as car loans and mortgages, these are generally the responsibility of the person who keeps the car or house after the divorce.
Joint debts which were for the benefit of the family must be divided between the parties. In most cases, personal debts such as personal credit cards or student loans are not shared in a divorce. However, there may be circumstances where these debts may be divided as well.
Property and assets
The way property and assets are divided in a divorce depends on the state. Utah follows “equitable distribution,” meaning that these must be divided up fairly. An equitable or fair division is not always fifty-fifty.
A number of factors may be considered when deciding what is a fair division of property, including:
- The duration of the marriage
- The value of the marital assets and property
- The age and health of the parties
- The income and earning capacity of the parties
- The contribution to the marital property
Child custody and visitation
When there are minor children involved, child custody arrangements and visitation schedules must be agreed upon as well.
There are two types of custody arrangements:
- Physical custody: Physical custody determines where the children will physically live. This includes the responsibility of day-to-day care.
- Legal custody: Legal custody determines who has the authority to make legal decisions for the child. This includes decisions regarding medical treatment, education and schooling, and religion.
Custody can be split up in a number of ways.
Either parent can be awarded sole custody of the children, granting him or her sole physical and legal custody. With joint custody, both parents share custody of the children, the children living with both parents and the parents making decisions together. Or else one parent may have sole physical custody while both parents share legal custody of the children.
Once both parents agree on how custody should be divided, an agreement can be made to address parent time with the non-custodial parent. This can include the division of time for holidays and vacations.
Child support
Child support is often paid by one parent to the other for financial support of the children. Not only is it key to agree on the need for child support payments, but this agreement should also include the amount of child support that must be paid as well as the schedule of the payments.
Generally, financial support continues until the child turns 18 or completes high school, whichever is later. In addition to basic support for day-to-day expenses, this financial support includes costs related to medical care and child care as well.
The necessity for child support payments as well as the amount will depend on the custody agreement.
Alimony and spousal support
Either spouse can claim alimony payments, and certain factors can affect spousal support, such as:
- How long the marriage lasted
- The earning potential of each spouse
- Contributions each spouse made to the marriage
- Contributions a spouse made as a homemaker
While people may be more familiar with spousal support payments being made monthly, there are other types as well. For example, alimony payments can be paid in a lump sum at the time of the divorce. Otherwise, support can be paid in the form of providing training or education to help the other spouse start earning a living.
The Role Mediation Plays
Clearly, there are a lot of terms that must be agreed upon in a divorce agreement. In most cases, both spouses don’t initially agree on everything, even when they are on the same page in some areas.
If there is an initial disagreement on some of the terms of the divorce, the case may not necessarily remain a contested divorce that must be settled by a judge in court. Mediation can play a vital role in the divorce process, ideally helping both parties reach an agreement without going to trial.
A divorce attorney can act either as advocate for one party or neutral mediator during mediation, either in the case of a dispute or before a contested divorce occurs. Take our firm’s founder, Marco Brown, for instance; he has served as mediator for many families in and around Salt Lake City. He runs a mediation service in the area that has helped resolve both contested and uncontested divorces.
During the mediation process, the mediator will allow each party to identify the issues in the dispute that need to be resolved and explain the situation from his or her point of view. Once the mediator understands the issues at hand, he can help both spouses negotiate until a mutually acceptable and beneficial resolution is agreed upon.
The information that is discussed during mediation is confidential, and the mediator is a neutral party – rather than representing the interests of one particular parent. Instead, his role is to reach an agreement for both sides in the best interests of the children.
When both spouses agree on the terms, they will sign a binding contract that can serve as the basis for a Decree of Divorce.
Our Uncontested and Contested Divorce Attorneys Are Here to Help
While getting a divorce can be overwhelming, it can become easier with less stress when you have someone assisting you. We are here to listen and understand your feelings and situation. Working with a divorce attorney at our law firm serving Utah can help you navigate your divorce without fear, protect your money, and maximize your time with your kids.
The lawyers of Brown Family Law have extensive experience working with both contested and uncontested divorce cases. Contact us to schedule a divorce consultation with our team and see how we can support you in getting a favorable outcome from your divorce and moving on with your life.
