Divorce is a significant life event that involves the legal termination of a marital union. It is a decision often accompanied by complex emotions, legal considerations, and a multitude of issues to be resolved. When pursuing a divorce and finding a divorce attorney near you in San Diego, it’s essential to understand the difference between two primary categories: contested and uncontested divorce.
This article aims to provide a comprehensive overview of these two paths, showing their distinctions and guiding individuals through the decision-making process.
What is the difference between contested and uncontested divorce in California?
A contested divorce is when the parties to a divorce cannot agree on one or more major issues. The major issues unresolved in a contested divorce are property division, division of debts, division of assets, alimony, child support, and child custody.
A divorce can be contested for 3 reasons:
- A factual disagreement
- A legal disagreement
- One or both of the spouses will not settle on some or all of the issues and terms of their divorce.
An uncontested divorce is when the parties to a divorce can agree on the terms of the divorce. In general, an uncontested divorce involves parties with no children and few assets to divide.
What are the major differences between contested and uncontested divorce?
Time
In an uncontested divorce, it is less time consuming for the spouses because it does not require a trial or other legal procedures. Typically, the parties will enter into a settlement agreement on all issues in their case, which is known as a martial settlement agreement. Once the marital settlement agreement is signed, the parties file the agreement as a stipulated judgment with the court. However, the couple must wait the mandatory 6 month waiting period before the court enters the judgment. An uncontested divorce is more likely to be finalized at the end of the mandatory waiting period, unless there is an unexpected delay.
However, a contested divorce is more time-consuming because it requires negotiations between the parties to agree on major issues such as property division, debts, division of assets, child support, child custody, and alimony. If the parties are unable to reach an agreement, the parties go to trial, which requires more time in court. It can take anywhere from minimum 6 months to several years for the court to enter a judgment for dissolution based on the unresolved issues of the case.
Cost
A contested divorce takes more time to finalize than an uncontested divorce. It entails filing a petition for dissolution, responding to the petition, hiring an attorney, discovery, filing pre-trial motions, attending hearings, engaging in settlement proposal and negotiations, and possibly preparing/attending trial. This makes contested divorces more expensive because the more time a lawyer spends on a case, the more the overall cost increases.
Control
While the terms of a contested divorce are decided by a judge, the terms of an uncontested divorce are agreed upon by the parties. Uncontested divorces are more predictable and allow the parties to agree to options that are unavailable to the court. The drawback of contested divorces is the parties lose control over the outcome of the divorce because they give decision making authority to the Court, which often leaves parties unsatisfied.
Emotions
Contested divorces are more emotionally charged and draining than uncontested divorces because the parties tend to disagree on sensitive issues such as child custody and visitation, and the division of the family home. It is also a stressful and emotional time ending a marriage. However, uncontested divorces are less hostile because the parties already agree on all major issues.
Disclosure process
Both uncontested and contested divorces require the same preliminary declarations of disclosures and the same final disclosure process. However, the only minor difference is many spouses waive their final declaration of disclosure in an uncontested divorce.
Appeal
Another difference between contested and uncontested divorces is the ability to appeal. Since in uncontested divorces the parties’ consent to the arrangement, the terms of the divorce are not appealable. However, if circumstances change significantly and/or a specific period of time has passed, the parties may modify the agreement. A contested divorce is more likely to be appealed by either spouse, which only prolongs the divorce process and increases the cost and time for the parties.
Where can I find a trustworthy divorce attorney near me in San Diego?
Whether you are dealing with a contested or uncontested divorce, the attorneys at JWB Family Law can provide you with advice and guidance based on our many years of family law practice experience in Southern California. Avoid the common mistakes by choosing the right lawyers and let us help you navigate the process every step of the way.