Divorce is always daunting. For individuals entering a divorce, understanding the legal jargon that accompanies the dissolution of a marriage can be an unnecessary stressor.
One of the first questions people often have is, "what's the difference between a contested and uncontested divorce?" Today, we're answering that question (and hopefully some others you didn't even know you had) so you can start navigating your divorce with confidence.
What Makes a Divorce Contested or Uncontested?
Fortunately, understanding the difference between an uncontested and a contested divorce is fairly easy.
In an uncontested divorce, the divorcees both agree on all aspects of the divorce.
In a contested divorce, the parties disagree on one or more elements of the divorce.
The divorce process encompasses various other legal disputes, such as property division cases, child support and spousal support disputes, child custody battles, etc. If you or you soon-to-be-ex disagree on how to handle any of these processes, you have a contested divorce on your hands.
Is a Contested or Uncontested Divorce Better for Me?
That's a nuanced question that depends on the circumstances of your divorce.
Most divorces don't make it to a court-ordered decree. The vast majority of divorce cases get resolved outside the courtroom, typically by utilizing alternative dispute resolution (ADR).
Typically, courts try to encourage couples to resolve their divorce outside of the courtroom. If a couple absolutely cannot agree on how to dissolve their marriage, the divorce decree (which determines how processes like property division, child custody, etc. are handled) is drafted and delivered by the judge presiding over the case.
Court-ordered divorce decrees are often considered a worst-case scenario. When the court decides a divorce, it removes agency for the parties involved. As a result, court-ordered divorce decrees often leave both parties feeling frustrated. A court-ordered decree can set things off on the wrong foot if the parties share children or need to maintain a working relationship post-divorce.
Courts typically encourage couples to use ADR to resolve their divorce out of court. Some common ADR methods include:
- Mediation. Many family law judges require divorcees to go through mediation before proceeding with the divorce in court. A mediator works with both parties to try and develop a mutually beneficial arrangement. It's important to note that mediators cannot give either party legal advice—if you want counsel during a mediation, you need to hire a dedicated mediation lawyer. Mediation also tends to be a fast process, sometimes occurring in a single day.
- Collaborative divorce. In a collaborative divorce, both parties hire an attorney. The attorneys then work with the divorcees to negotiate the terms of the divorce. Collaborative divorces often take longer than mediations, occurring over several sessions. Collaborative divorce can be a great option for people who want to negotiate with their spouse but desire more legal protection and time than mediation can provide.
- Litigation. In litigation, both parties settle the divorce out of court. Litigation is usually more combative than other ADR methods, and also often involves court hearings. Litigation is a good option for estranged couples that can't engage in good-faith negotiation but still want to avoid a court-ordered divorce decree.
Very few divorcees agree on absolutely every aspect of a divorce at the outset. As a result, many divorces are filed as a contested divorce, but often get resolved out of court since divorcees often reach a compromise through ADR.
What Does "Fault-Based" Divorce Mean?
Texas uses fault-based divorce laws. If your marriage simply isn't working out, you can file for a no-fault divorce by citing "irreconcilable differences."
However, you can also file for divorce by citing one of the following fault-based reasons:
- Felony conviction
If you file for a fault-based divorce, you'll need to present evidence to the court backing up the grounds for your divorce. For example, if you cite adultery as the grounds for your divorce, you and your attorney will have to provide evidence supporting the claim that your spouse committed infidelity.
In a fault-based divorce, the court will take the fault into account when handling various divorce-related processes. For example, if your spouse carries out an act of child abuse, the court might award you full child custody to prevent your spouse from committing child abuse again in the future (as long as evidence supports the claim of abuse, obviously).
It's also worth noting that courts may not accept ADR methods during fault-based divorces under specific circumstances. In cases where a spouse commits domestic abuse or a similar act, the court often forces a court-ordered divorce decree to prevent a spouse from taking advantage of a power imbalance in the relationship.
At the end of the day, no two divorces are ever the same. What's right for one couple may not work for another, which is why it's so important to work with a divorce lawyer you can trust.