What Is The Difference Between Contested And Uncontested Divorce?

There are two ways you can file a divorce in Massachusetts: Uncontested or Contested. Let me explain the difference:

UNCONTESTED:

Filing for an uncontested divorce means that both you and your spouse are in agreement with the divorce and have been able to work out ALL of the issues that need to be determined within a divorce judgment (custody, parenting time, child support, property division, alimony, etc.) BEFORE anything gets filed in court. Once all the issues are determined, they are written up in a document generally referred to as a “Separation Agreement” or “Divorce Agreement”, both you and your spouse complete the paperwork required to file a joint petition for divorce, you both fill out your individual financial statements, and complete your parenting course (if you have kids), and only after all of that is done, you both file in your local family court and get a hearing date to present the petition and Separation Agreement to the Judge to have it looked at to determine whether the agreement is “fair and reasonable.” So long as the Judge approves your agreement, the Judge will enter the “Nisi Judgment” 30 days after the date of the hearing. There is then a 90-day waiting period before the Court automatically enters the “Absolute Judgment.”

PROS:

• Allows the Parties to work together and determine what is going to work best for them moving forward.
• Usually cheaper as being able to come to agreements takes less time than fighting things out in court.
• Usually helps to keep the relationship between the spouses more amicable as it suggests more of a cooperative relationship rather than a fighting relationship.
• Generally gets the Parties divorced more quickly.

CONS:

• If you and your spouse cannot agree on even one small little issue, you cannot file for an uncontested divorce.
• Not appropriate where there is an imbalance of power which equates inequality in bargaining between the two parties (unless both sides have attorneys).
• Even if everything is worked out, if one person refuses to sign the papers or drags their feet in signing, there is nothing you can do.
• You cannot get a temporary order from the Court while you and your Spouse negotiate. This means if your spouse stops paying the bills or giving you money, there’s nothing you can do about it.
• Even if you agree to how you will each provide support, pay the bills, or have parenting time with your kids, if your spouse reneges on his or her agreement, you cannot file a contempt and have the court make them do what they said they would.
• You could go through the entire negotiation process and then still end up having to file for a contested divorce, which takes longer and means more money.

CONTESTED:

Filing for a contested divorce means that one person wants to get started on the process or needs a temporary order from the Court relating to how support and expenses are to be paid during the pendency of the litigation. This is what is generally seen in the movies where one person files and the other person gets served and they’re like, “Oh my god! I just got served with divorce papers!” Now, don’t let the name fool you though because the majority of divorce cases that are filed on a contested basis still settle. If you and your spouse can reach an agreement before six months have passed, it can be changed into an uncontested divorce; otherwise, the Court cannot issue the Nisi Judgment until those six months have passed. Some contested cases have to go through a trial in order to be finalized. No one can usually tell from the very beginning of a case whether or not you will have to go through a trial, which is why it’s important to have an attorney who is both a great negotiator as well as a fearless litigator. You should always have a back-up plan in case negotiations break down. The contested route does not need to be overly dramatic as the goal is to reach an agreement to get you divorced; however, it does set the Parties up to be adversaries rather than allies. If you need the Court to order something, such as a child support or alimony payment, dictate who pays the bills, what the parenting plan is going to be, or any other issue that cannot wait until the end of the divorce, you will need to go the contested route.

PROS:

• Guarantees the divorce process is underway as the Court enters the picture to make sure it keeps moving forward.
• Allows for temporary orders to ensure that the children are receiving support, that each parent has parenting time, that the household expenses are getting paid, etc.
• Provides a way for the other person to get into trouble if they do not abide by the temporary order.
• Forces the other Party to “come to the table.”
• When the other person is being unreasonable, it provides for Judicial input.
• Provides for discovery processes in case the other Party is hiding income, lying about issues, or you do not have a firm grasp of what makes up the marital assets or there are questions about the other Party’s ability to parent safely.
• The Court can enter orders to help keep you and/or your children safe.
• You might need to file and have the other side served if the length of your marriage is about to hit the next bump up in the alimony statute (five years, ten years, fifteen years, and twenty-year marks) where alimony is at issue.

CONS:

• Presents a feeling of contentiousness right from the beginning.
• Can sometimes be difficult to get past the emotions of being “against” each other to be able to reach a settlement.
• Whenever people cannot agree, the divorce will take longer and will also cost more in legal fees.
• Going to court and not having control over your own future can take an emotional toll.
• Litigation is expensive.

Which way to file for divorce really depends on your individual situation and what you’re trying to accomplish. You should definitely be able to speak to your lawyer about the best way to go about obtaining your divorce to make sure your goals and objectives are being met.