The divorce process: uncontested versus contested divorce

The divorce process: uncontested versus contested divorce

All good things come to an end

Divorce can cause separation anxiety, financial uncertainty and serious worry regarding your children.

You have a choice: approach the divorce dispassionately or reenact the war of the roses. Fighting divorces takes time and costs a lot. Rather than vanquishing the other party, they too often enrich lawyers and impoverish the litigants – and their offspring.

Be dispassionate in planning your divorce. Look forward. Focus on the future and reshape your life.

The divorce process

Uncontested vs. contested divorce

Congratulations, starting with the divorce process is a major milestone you have accomplished.

Depending on the willingness to be divorced and the ability to negotiate an agreement, the process can take two basic routes: A contested or uncontested divorce. Both require legal counsel.

Uncontested divorce – you are a lucky person

An uncontested divorce enables couples to negotiate their divorce terms, and consequently to retain more control over various issues. It requires that both parties put emotive issues aside, focus on de-escalating the conflict and on resolving problems.

Consensual divorce (aka amicable divorce)

Spouses are willing to find a solution, to ascertain the best interests of both parties and their kids, and to keep discussions private, respectful and polite. The two commonly used methods are divorce mediation or negotiation.

Time and money can be saved. A potentially high stress litigation between warring parties can be avoided.

Comprehensive divorce agreement

The spouses still need to appear in court where a hearing will take place. If you both choose to divorce, you can file a joint petition for divorce, supplemented by a comprehensive divorce agreement and important supporting documents.

Partial divorce agreement

If you cannot agree on every issue, you can file a partial divorce agreement (or partial convention) and request settlement of any collateral issues that remain in dispute.

Which issues do need to be addressed? Property and pension matters, divorce-related expenditures, spousal support arrangements, childcare and child support must be resolved in order to obtain a divorce decree.

In assessing a divorce petition, the court inquires whether the proffered divorce agreement is clear, complete, and not manifestly unreasonable.

Contested divorce and trial

Before the civil registry office and the altar, you said “yes, I do”. Now one of you says no to divorce.

If one spouse opposes divorce, the other can submit a divorce petition unilaterally after two years living apart. A court will, in rare instances, grant a unilateral petition for divorce if two years of living apart is unreasonable.

A contested divorce is a much more challenging and complex process. It entails a full courtroom trial, consisting of opening and closing arguments. Going to trial means telling the judge your story, proving the property, debts and their value, your income, and lastly your abilities to look after your children. All disputed facts must be proven. Detailed evidence must be presented. It is not as easy as you might expect. A judge will decide if no settlement is reached.

Litigation is necessary when couples are very unreasonable, contentious and consumed with vengeance. Your former spouse is now your legal opponent. It may be stressful to act confidently and to make the right decisions. Litigants should not represent themselves. You need reliable advice and guidance to safeguard your interests. A judge will not give you legal advice.

My sincere advice: If you can, avoid trials.

Do not assume it is all you need to know. Please reach out for advice or representation. I can guide you through the process. I will assist you step by step, so that you can make a propitious fresh start.