Contested vs. Uncontested Divorce

There are multiple types of divorce. Two common categories of divorce are contested and uncontested divorce. 

Uncontested divorces are typically speedier and less costly than contested divorces, which can drag on due to disagreements over divorce terms. Keep reading to learn the differences between contested and uncontested divorces.

What is the difference between contested and uncontested divorce?

A contested divorce is when spouses disagree on significant issues and must go to court to determine the results of the divorce. 

An uncontested divorce is when both parties agree to the terms of the divorce.

What is a contested divorce?

A contested divorce is when the parties are unable to agree on major issues of their separation. 

Reasons for a contested divorce can include disagreements about:

• Spousal support
• Marital debt
• Division of assets
• Child support
• Child custody arrangements

For example, if you want full custody of your children but your spouse wants to split custody, or if you can’t agree on which person will remain in your house after you split up, then you will likely need to get a contested divorce.

A court may also view a divorce as contested if one spouse wants to end the marriage and the other wants to remain married or if one spouse wants to file for a fault-based divorce. 

In a fault-based divorce, one spouse claims that the other spouse did something wrong that caused the marriage to break down. Courts in some states may accept abuse, abandonment, and adultery as valid reasons for filing a fault-based divorce.

A no-fault divorce is when a couple decides to split up due to irreconcilable differences or incompatibility, and can be either contested or uncontested. In a contested no-fault divorce, although both spouses agree that neither is at fault for the dissolution of their marriage, they may disagree on issues such as child custody or alimony.

Contested divorce cost

The cost of a contested divorce depends on several factors, including where each spouse lives, whether you have any children involved, and if you go to trial.

The cost of filing for divorce varies depending on your state. For example, the cost of filing for divorce in Florida is ~$400, while the cost of filing in South Dakota is $95.

Attorney fees can differ from county to county. Legal technology company Clio states that the average hourly rate for family attorneys in California is $344, whereas in South Dakota, it’s $199. 

While not all divorces go to trial, those that do are typically the most expensive. The more disputes a couple has, the more legal fees tend to increase. For instance, a divorce involving child custody alone may be less costly than a divorce with both child custody and property disputes. 

According to the Clerk of the Circuit Court and Comptroller in Lake County, FL, that jurisdiction charges the following dissolution of marriage filing fees:

• Dissolution of marriage and annulment: $397.50
• Cases involving dependency, support, custody, or visitation: $300
• Counterclaim complaints: $295
• Notice of appeal: $400
• Cross-appeal, notice of joinder, or motion to intervene: $295

The above fees may include a 3.5% fee for payments made by credit card and do not include attorney fees. According to Clio, the average hourly rate for a family attorney in Florida is $344, which means that a person who wants a contested divorce in Lake County with legal representation could very well end up having to pay thousands of dollars for a divorce. 

When you and your spouse can’t agree on the terms of the divorce, the duration of the divorce process can extend, and legal fees can add up.

There are several other expenses besides attorney and court fees that can be associated with divorce, including:

• Taking time off work for court appearances
• Vehicle title transfer fees
• Home appraisal and title insurance fees
• Dividing retirement accounts
• Tax consequences due to changes to filing status or dependency claims 
• Moving expenses
• Increased living expenses 
• Increased health care costs (if health insurance is lost due to marital dissolution)

If you are considering a contested divorce, it’s a good idea to hire a lawyer to help protect your assets and achieve your objectives. 

What a contested divorce lawyer does

A contested divorce lawyer defends your rights throughout the termination of your marriage and advocates for you to get the best possible outcome. 

A contested divorce lawyer can help you through each step of your divorce. 

1. Prepare and file divorce papers. One of the spouses completes and files a divorce petition (also called a complaint for dissolution of marriage), summons, and any supporting documents (such as child custody or alimony requests). 
2. Notify your spouse. You will need to let your spouse know that you intend to divorce them by serving them divorce papers. You must then file proof of service with the court to verify that you had legal documents delivered to your spouse. Your spouse will then answer your divorce petition. If your spouse does not respond, you can file for a default divorce.
3. Discovery. Both sides must collect records and get in touch with witnesses. You and/or your witnesses may also need to give depositions. Depositions are oral statements given by witnesses under oath. Lawyers use depositions to get a better understanding of the case and help them prepare for court. 
4. Negotiation. The attorneys for each spouse can now begin the negotiation process. If both spouses agree on a settlement, they can avoid going to trial. However, if the issues can’t be resolved, the case will go to trial.
5. Trial. During the trial, the attorneys may present witnesses, and the judge may ask both spouses questions about the circumstances of the divorce. Be prepared for the opposing counsel to ask your witnesses questions during cross-examination. The judge will then decide on issues such as alimony, child support, custody and visitation arrangements, and the division of marital assets and debt.
6. Appeal. Either spouse can appeal the judge’s decision if they disagree with the outcome. Courts don’t typically grant appeals for an entire divorce, but you may have success appealing certain terms of your divorce, such as property or custody decisions. 

Having legal representation for a contested divorce is important, as a divorce attorney may be able to help you work toward a settlement and avoid having to go to trial. 

If you and your spouse can’t agree on key issues such as custody or property division, you may end up having to go to trial, in which case your lawyer can help ensure that your interests are represented in court.

What is an uncontested divorce?

With an uncontested divorce, both spouses agree on the terms of the divorce. 

When both parties agree on issues such as spousal support, child custody, and property division, they may be able to get divorced by simply submitting the required paperwork and waiting for the judge’s approval.

However, some states may require couples to undergo mediation–a resolution process in which you and your spouse meet with a trained mediator to try to reach an agreement on the major issues of your divorce–or endure a waiting period before the divorce can be finalized. 

Uncontested divorce cost

Uncontested divorces are preferable to contested divorces, as they usually have lower costs and shorter time frames. Getting an uncontested divorce can potentially save you thousands of dollars. 

Even though an uncontested divorce is typically cheaper, the costs can still add up. You must pay a divorce filing fee and may also have to pay attorney fees, mediation costs, and other court fees. 

What an uncontested divorce lawyer does

An uncontested divorce attorney can write or revise divorce papers and other necessary documents and help you with each step of the divorce proceedings. 

1. Prepare and file divorce papers. The first step in starting your uncontested divorce is to complete and file your divorce papers, including a document called a marital settlement agreement and any other supporting documents. A marital settlement agreement is a legal document that details the divorce terms that you and your spouse agree to. 
2. Serve divorce papers. Depending on your state, you may still need to serve your spouse with divorce papers, and your spouse may need to file their response. 
3. Attend a hearing. Some states require you to attend a hearing. During the hearing, the judge will ask questions about the marital settlement agreement, such as whether you both understand the terms outlined in the agreement and whether you fully disclosed all assets and debts. As long as the agreement is fair, the judge should approve it. Your divorce is finalized as soon as the judge signs the final divorce judgment.

While uncontested divorces tend to have lower costs and take less time than contested divorces, it’s still a good idea to have legal representation for this type of divorce. An uncontested divorce lawyer can help answer questions about the law as it pertains to your case, provide information about court procedures, and draw up and review necessary paperwork. 

If you feel comfortable managing the majority of your uncontested divorce case yourself and want to save money on attorney fees, you might consider hiring a divorce attorney on a consulting basis to assist with specific aspects of your case. 

Some divorce attorneys offer a free consultation, which can help save on costs and give you an idea of how they can best help with your case. 

Contested vs. uncontested divorces: 5 key differences

The main differences between contested and uncontested divorces are cost, time commitment, legal procedures, control, and appealability. 

Cost

With an average cost of $4,100, an uncontested divorce is often much cheaper than a contested divorce, which can cost several thousands of dollars more depending on the disputes involved and whether the case goes to trial. 

Time commitment

An uncontested divorce typically takes less time than a contested divorce. If you can’t resolve your issues, the process of getting divorced can take much longer. 

The time it takes to finalize a divorce depends on several factors, including:

• Your location
• Whether your state requires a waiting or separation period
• How long you’ve had residency in your state
• Whether you're filing a fault-based divorce
• How long it takes to serve your spouse divorce papers
• Disagreements on major issues

Legal procedures

When you have an uncontested divorce, you don’t have to go through the lengthy legal procedures that a contested divorce involves. Legal procedures for contested divorces can include:

• Discovery
• Negotiation
• Going to trial
• Appealing to a higher court (if one spouse disagrees with the judge’s decision)

Control

Spouses tend to have more control over outcomes in uncontested divorces, as they can work toward an amicable agreement on terms. 

In a contested divorce that goes to trial, both parties are at the mercy of a judge’s decision. If either party disagrees with the terms of the final judgment, then they must appeal to a higher court.

Appealability

With a contested divorce, you can appeal the judge’s decision after the trial. However, appealing a divorce isn’t easy and can take a considerable amount of time and money. 

There are some situations in which you may be able to appeal the judgment, such as if you find out that your ex-spouse lied or hid assets or if the court misinterpreted the law during your trial. 

An uncontested divorce is not appealable as both parties consented to the terms of the divorce. If your circumstances change significantly–for instance, if you have a custody arrangement and one party moves to a different state–then you must follow your state’s steps in requesting a modification to the court order. 

How to decide which process is right for you

Undergoing mediation and working with an attorney can help you and your spouse come to an agreement on the terms of your divorce while protecting your best interests.

Deciding factors between contested and uncontested divorces can include:

• Relationship dynamics. If you and your spouse generally get along and communicate well, an uncontested divorce may work well for you. 
• Marital assets and debt. If you and your spouse have a lot of assets–or a lot of debt–it may be challenging to figure out how to split your financial resources and obligations. 
• Priorities of both parties. An uncontested divorce requires both parties to be on the same page. If one spouse doesn’t want to get divorced or doesn’t care how long the process takes and a settlement can’t be reached, then you may have to go to trial.
• Whether you agree on major issues. Disagreements concerning issues such as child support and custody and division of property are a driving factor in contested divorces. 

Consulting with a divorce attorney can help you gain a better understanding of your unique situation and the legal options available to you. 
 

FAQs

Do I need a divorce attorney for an uncontested or contested divorce?

You aren’t legally required to hire an attorney for either type of divorce. However, hiring a divorce attorney can help protect your interests and help you determine whether it’s possible to turn a contested divorce into an uncontested divorce, saving you time and money. 

You have the option of pursuing a pro se divorce and representing yourself. A pro se divorce can work for couples who want to get an uncontested divorce. With a contested divorce, the time involved with conducting the necessary research combined with limited legal training can end up costing you a lot of money and may not result in a favorable outcome. 

Using a mediator can be a cost-effective alternative to hiring a lawyer if you think your spouse wants to resolve issues without a trial. 

If your spouse behaves unethically, is abusive, or wants to delay the divorce proceedings to avoid paying support, hiring a divorce attorney to represent you is a wise course of action. 

What if we start with an uncontested divorce and disagreements arise later?

If you and your spouse start with an uncontested divorce and then change your minds about the terms of the divorce and can’t settle on an agreement, you may need to switch to a contested divorce. Speaking with a divorce lawyer can help you figure out the best approach in this situation. 

Can we switch from a contested to an uncontested divorce if we reach an agreement?

Many couples start with a contested divorce and then come to a resolution with the aid of mediators and divorce attorneys. If you can reach an agreement on all major issues, you can switch from a contested to an uncontested divorce. 

Can a no-fault divorce be contested?

A no-fault divorce can be contested. While the grounds for a no-fault divorce are not based on one of the parties doing something wrong, the spouses may still disagree on how to resolve certain issues, such as alimony, child support, and child custody. If the spouses can’t come to an agreement on major issues, then the divorce is considered contested and may need to go to trial. 

Is mediation required in a divorce?

Mediation requirements depend on your location and the circumstances of your divorce. Some states and counties require mediation in certain situations, such as when child custody is involved, while mediation is mandatory in other states. 

For example, Utah requires spouses to participate in at least one mediation session before a divorce case can move forward in court, while courts in Iowa may require participation in mediation before granting a dissolution of marriage.