Differences Between Contested vs. Uncontested Divorce

When legally parting ways with your spouse, there are two types of divorce: contested and uncontested. The path you pursue to end your marriage will make all the difference in how your case proceeds. You and your spouse remain in control of the decisions in an uncontested divorce; a judge makes those decisions in a contested divorce because a settlement cannot be reached. Importantly, whether your case is suited for an uncontested divorce instead of a contested divorce depends upon the level of conflict between you and your spouse, your ability to cooperate, and your specific objectives.

Key Takeaways

• In Maryland, a divorce can be either contested and go through the litigation process in court, or uncontested and resolved out of court.
• A divorce is contested if spouses cannot agree on one or more of the issues that must be determined in order for a judge to sign the final divorce decree.
• A divorce is considered uncontested if spouses agree on all the major issues in the case, including child custody, child support, property division, and spousal support.

What is a Contested Divorce?

A contested divorce is one in which spouses cannot decide one or more of the major issues in the case. Contested matters begin with a spouse filing a complaint and receiving a summons from the court, which is then served upon the other spouse. A contested case will go through the litigation process until a settlement is reached or a trial is held. A contested divorce can involve multiple court appearances, extensive discovery, motion practice, depositions, and trial preparation, and the process can be lengthy and expensive.

Critically, in order for the judge to sign the final divorce decree, the following issues must be determined in a divorce:

• Child custody
• Child support
• Property division
• Spousal support
• And sometimes attorney’s fees, other costs of litigation, possession and use of the family home and family-use personal property, and similar attendant issues.

Even if a divorce begins as a contested matter, it doesn’t always mean a judge will ultimately determine the outcome. Judges encourage parties to settle the issues in their cases between themselves whenever possible. A contested case can move to the uncontested track at any time if the spouses settle the issues in dispute before trial.

What is an Uncontested Divorce?

An uncontested divorce is one in which the spouses agree on all aspects of the divorce. If spouses do not agree on one or more of the issues that must be determined, the case is considered contested and any disputes must be resolved before the judge will sign the divorce decree. Since cases that are uncontested do not need to go through the litigation process, they are often faster and more cost-effective than contested divorces.

An uncontested divorce can be accomplished by filing for a mutual consent divorce from the outset, which is the fastest option. This process involves creating a settlement agreement that resolves all the issues in the case before filing for divorce. Or, couples may use a method of alternative dispute resolution at any time (such as mediation or the collaborative process) to resolve the issues in their case without resorting to trial.

Is a Contested vs. Uncontested Divorce Right for My Situation?

Deciding whether a contested vs. uncontested divorce is right for your situation will depend upon several factors. If you and your spouse can communicate effectively and are able to collaborate to reach a settlement agreement, your case may be suited for the uncontested track. Couples who were only married for a short time and have few assets or no children can also be ideal candidates for an uncontested divorce. However, the process also works for spouses who were in long-term marriages or have complex assets if they can agree.

Some of the benefits of proceeding with an uncontested divorce can include:

• Privacy: Unlike a contested divorce, an uncontested divorce does not take place in an open and public courtroom and the details of the divorce do not become part of the public record.
• Efficiency: There are fewer legal procedures in an uncontested divorce, allowing for a streamlined, faster and more efficient process.
• Cost-effectiveness: Since an uncontested divorce can reduce the level of conflict and avoid the need for court intervention, there are fewer legal fees. This makes an uncontested divorce much more cost-effective than a contested divorce.
• Amicability: By focusing on solutions rather than conflict, an uncontested divorce can help reduce emotional strain and promote amicability between spouses. This can be essential for spouses who will be co-parenting into the future.
• Control: An uncontested divorce allows the parties to remain in control of the outcome of their case, rather than let a judge decide the issues that will impact them and their family for years to come.

Regardless of the benefits of an uncontested divorce, it may not be the right choice in every situation. For instance, if there is a power imbalance in the marriage, domestic violence is an issue, or hidden assets are suspected, the litigation process can offer certain legal protections that are crucial for protecting the vulnerable party. A knowledgeable family law attorney can advise you on the best path forward based on the specific facts of your case.