The Difference Between Contested and Uncontested Divorces
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Summary: An uncontested divorce can have advantages for many divorcing couples, saving time and money.
THE DIFFERENCE BETWEEN CONTESTED AND
UNCONTESTED DIVORCES
An uncontested divorce
is one which proceeds to final judgment without any opposition either because
the parties have no children or property or support issues at all, or because
they have come to an agreement on all of their issues. An uncontested final hearing takes only a few
minutes. It is required that residency
be proven, usually by showing a valid Florida driver’s license issued at least
6 months prior to the filing of the Petition for Dissolution of Marriage. Sometimes, a residency witness or
corroborating affidavit has to be used because the party does not have a
driver’s license. If the parties have a
written agreement, it has to be submitted into evidence and approved by the
Judge. When no one is contesting the
case, the approval is usually routine.
Sometimes, if the parties are not represented by attorneys, the Judge
looks at it more closely to determine that it complies with the law, especially
as to child support and parenting time.
If there is a request for a name change, a few additional questions have
to be asked to determine that the requested name change is not for the purpose
of avoiding creditors. The party also
has to say, under oath, that the marriage is ‘irretrievably broken’, which is
the grounds for a no fault divorce.
Sometimes, the Judge will ask if there is anything anyone can do to
reconcile the parties. Occasionally, the
Judge will ask if the party if satisfied with their legal representation. When I attend an uncontested final hearing,
we spend more time waiting our turn than we do in front of the judge. At the conclusion of the hearing, the Judge
signs a Final Judgment of Dissolution of Marriage and the parties are
officially single. When the case begins
and ends as an uncontested divorce, it typically takes between 3 and 5 weeks to
conclude from the time of filing the Petition.
A contested divorce is
one where the parties fight out all of their issues in our adversary system and
a judge ultimately decides the outcome of everything. A contested divorce can become an uncontested
divorce at any time if the parties come to an agreement, and they are usually
ordered to attend court-ordered mediation before they are allowed to go to trial
before the Judge.
After the Petition for
Dissolution of Marriage is filed and served on the other party with a summons,
the other party has to file an Answer admitting or denying the allegations of
the Petition, and may also file a Counter-Petition for divorce. After the pleadings are filed, both parties
have an obligation to provide Mandatory Disclosure which includes tax returns,
bank statements and other financial documents regarding the parties’ incomes,
assets and liabilities. In addition to
the Mandatory Disclosure, attorneys typically ask for much more extensive
production of documents, ask questions to be answered under oath
(Interrogatories) and may take depositions from the parties and any
witnesses. Motions may be filed to set
temporary support, to punish any alleged violations of orders made in the
case, or for an almost unlimited range
of other issues regarding the discovery and processing of the case. For parties with a great deal of assets or
who own a going business, it may take a great deal of time and money to
determine the value of the assets or the income of the parties. It would be unusually speedy for a contested
divorce to be concluded in less than 3 months.
Typically, these cases are going to take more than 6 months before they
go to trial, and some may go on for years.
Obviously, one of the
major differences between contested and uncontested cases is the amount of
attorneys fees. The other major
difference is in how long it takes to get through the process. However, in either case the law is the same,
and the results might not be all that different. We always recommend that clients consider
whether it is possible to agree on all of their issues before they even file
for divorce.
Copyright 2012, Kenneth A. Friedman