Contested vs. Uncontested Divorce: Key Differences

What Is an Uncontested Divorce?

An uncontested or default divorce is when one spouse files for divorce and the other spouse either agrees to the terms of the proposed divorce settlement or the two parties reach an agreement outside of court. This includes issues of property division and spousal support. It is not uncommon for couples with relatively straightforward cases to work out the details of their divorce before filing with the courts, making litigation unnecessary and allowing them to go through the more simplified process of an uncontested divorce.

Having an uncontested divorce is not the same thing as a DIY divorce. Even when they and their former spouse are able to agree to divorce terms from the start, most people will work with an attorney to ensure that their best interests are protected and that all paperwork is completed and filed correctly.

The Uncontested Divorce Process in California

When someone files for divorce, their spouse will be served with the divorce petition. Once they are served, they have the option to file a response. This response must be filed within 30 days of being served the petition. Filing a response does not mean that you cannot work out an agreement with your spouse, nor does it mean you have a contested divorce.

After filing a response, you must provide your former spouse with your full financial disclosure within 60 days of filing your response (this can also be done when you file your response). Your disclosure documents should also contain copies of your tax returns from the past two years.

Your financial disclosure is very important, and mistakes or omissions made during this process can result in your case being re-opened or your property division agreement being canceled. Furthermore, the courts can also assess a fine or award the undisclosed property to your former spouse.

After you have completed and served all necessary preliminary paperwork and disclosures, you will have to write up the agreement between yourself and your spouse and fill out your final paperwork and file it with the courts.

What Happens If My Spouse Doesn't Respond?

When someone files for divorce and their spouse does not respond to the filling, the courts will consider the divorce uncontested and will proceed with the default divorce process. When this happens, it is called a "true default" case, and the petitioner will then proceed with filling their final paperwork asking the court for a judgment of divorce.

When someone does not respond to the petitioner's summons, but there is an agreement in place, the couple can proceed with the uncontested divorce process, write up their agreement for the courts, complete final paperwork (including your final declaration of disclosures), and submit everything to the court asking for a final judgment of divorce.

Do I Need an Attorney for an Uncontested Divorce?

A significant amount of final paperwork and forms must be completed when finalizing your divorce, even when the divorce is uncontested. It is highly recommended that you work with an attorney to ensure all paperwork is handled correctly to avoid delays and other issues with your divorce.

What Is a Contested Divorce?

A contested divorce is a divorce case in which the divorcing couple does not agree on one or more of the divorce settlement terms. The divorcing couple just has to disagree on one thing for the divorce to be considered a contested divorce. For example, you can agree on child custody, child support, and property division but disagree on spousal support, and the divorce will be considered a contested divorce.

With a contested case, the judge presiding over the case will decide how to resolve the issues that the couple cannot agree on. It can be very difficult to litigate divorce matters in court, and you may not be happy with the judge's decision. Furthermore, when matters have to be litigated in court, they become part of the public record, and you lose a certain amount of privacy. Therefore, it is recommended that you work with your attorneys and/or a mediator to negotiate your contested issues before taking them before a judge so that you can retain control over the process.

If you are going through a difficult, contested divorce, you must work with an experienced lawyer. Not only can your attorney represent you in court, but they can also help you with negotiations with your former spouse and work to ensure that your best interests are protected. Reach out to Hanson, Gorian, Bradford & Hanich to discuss your case with one of our lawyers today.

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