WHAT MAKES A DIVORCE “CONTESTED”?
When researching divorce or divorce attorneys, you are likely to run across the terms “contested” and “uncontested.” While it is true a divorce can be classified as either of these, the need to do so is largely over emphasized. In fact, almost every divorce will be both contested and uncontested at various points in its litigation. These concepts are best understood as fluid, rather than strict, classifications. Below is a discussion of what it means to be contested and uncontested, and why these classifications matter.
Uncontested Divorces
To help understand what a contested divorce is, it is easiest to start with uncontested divorces. This is because divorces can be contested in a virtually endless number of ways, but to be uncontested, there is really only one way to fall within this category. An uncontested divorce is one in which the sides agreed to all essential terms. These divorces are resolved via settlement agreements, approved by the court. Most divorces are resolved in this manner, without the need to progress to trial. However, this certainly doesn’t mean that most divorces start out this way. Instead, the spouses are simply able to reach agreements through the litigation process.
Contested Divorces
All divorces that are not entirely uncontested are contested divorces. One can look at contested divorces as the “default” type of proceeding. A divorce is contested when the couple does not agree to any essential term of the divorce. Essential terms for a divorce are (1) the division of property and debts between the spouses; (2) the child custody agreement, covering when the children will stay with each parent; (3) the child support agreement, outlining which parent will pay support and in what amount; and (4) the spousal support agreement, outlining which spouse will pay support and in what amount. Reaching an agreement on a single one of these issues can be extremely difficult and reaching agreement on all four is quite a feat. This is why the vast majority of divorce begin as contested divorces.
Though most divorces begin as contested proceedings, this does not mean they must end as contested divorces by having a judge determine the disputed issues. Instead, most divorces will end by agreement between the parties, as noted above. However, it is also the case that divorces seeming to begin uncontested, with the parties seemingly agreeing on key terms, can quickly become contested. As the specific of each part of the divorce are discussed, it can become clear that the agreement is incomplete. For example, the two spouses may agree to divide all property 50/50 between themselves. However, when the spouses start to decide what will constitute each side’s 50% share, disagreements over particular pieces of property are likely to develop. This tends to have a snowball-effect, leading to more disagreements and opposition out of the frustration. This effect is particularly likely in self-represented cases, where there are no lawyers to act as intermediaries or to offer detached opinions. Because of this common occurrence, these divorces aren’t really true uncontested divorces, but rather are divorces that have not been fully explored by the spouses.
Handling Contested Divorces
An uncontested divorce—truly uncontested, that is—can be resolved by immediate settlement between the parties. Contested divorces require a different approach. The first step in reaching an ultimate resolution is determining what exactly needs to be decided. This generally will include making sure all assets and debts are known to each side, so the property can be fairly divided. It may also include ensuring a spouse is a fit parent, when issues of actual mental health are brought up. Once all the essential facts are on the table, the spouses can begin deciding what a fair distribution of property is, along with the other necessary terms.
The next step is determining what is important as far as outcomes. Determining where there is room to compromise and what are deal breakers are key in working towards an uncontested outcome. Each side will have several things that he or she wants to come out one way, but the struggle for this step is really determining where “wiggle room” exists. Each side can open meaningful negotiations only after they have made these tough decisions for themselves.
The final step is negotiating with the other side. There is certainly gamesmanship here, but the real goal of each side should be working towards an agreement. Sometimes, no agreement can be reach and that is ok. That simply means each side will have to prepare to have the court determine the terms of the divorce. However, this outcome can be risky for both sides. The judge may decide to “split the baby” so to speak, resulting in a divorce decree that no one is fully satisfied with. This risk can be a powerful driving force in reaching a settlement agreement that satisfies the goals of each side.
Divorces run the gauntlet in terms of the relationship between the spouses and amenability to agreement. Part of what an experienced attorney does is work towards a compromise that satisfies your goals. Having an attorney that is experienced ensures that you are placed in a good position to both reach a negotiated agreement or prevail at trial, should that be necessary. Only in these situations can you be fully confident in achieving your goals concerning the divorce. If you need the help of an experienced divorce and family law attorney in Johnson County, Kansas feel free to contact our office.