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 that a divorce can be classified as either of these, the need to do so is vastly overemphasized. 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 an uncontested divorce. 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 parties agree 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 this way. Instead, the spouses can 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 on any essential term of the divorce. Important 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 agreement on a single one of these issues can be extremely difficult, and on all four, it's quite a feat. This is why the vast majority of divorces begin as contested divorces.
Though most divorces begin as contested proceedings, this does not mean they must end as contested divorces, with a judge determining the disputed issues. Instead, most divorces will end by agreement between the parties, as noted above. However, it is also the case that divorces that seem to begin uncontested, with the parties agreeing on key terms, can quickly become contested. As the specifics 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. 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 frustration. This effect is particularly expected 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 true uncontested divorces; instead, they're divorces the spouses haven't fully explored.
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 includes ensuring that all assets and debts are known to both parties so that the property can be fairly divided. It may also include providing a spouse who 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 on a fair distribution of property, along with the other necessary terms.
The next step is determining what is essential regarding outcomes. Determining where there is room to compromise and what are deal-breakers is key to working towards an uncontested outcome. Each side will have several things it wants to come out one way, but the struggle at this step is really determining where the “wiggle room” lies. Each side can open meaningful negotiations only after it has made these tough decisions for itself.
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 reached, and that is ok. That means each side will have to prepare for the court to 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 delighted with. This risk can be a powerful driver in reaching a settlement agreement that satisfies the goals of both sides.
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 a skilled attorney ensures that you are in a good position to 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.