What Is a "Contested" Divorce?

Learn more about the contested divorce process.

By , Attorney · UC Law San Francisco
Updated by Melissa Heinig, Attorney · Cooley Law School
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What Does Contested Divorce Mean?

A "contested" divorce is the most complicated of divorces because it involves spouses who can't agree on one or more divorce-related issues in their case.

Contested Versus Uncontested Divorce

Typically, there are two kinds of divorces. The first is an "uncontested" divorce—which is where both spouses agree on all issues concerning the divorce, including but not limited to the division of marital property and debts, child custody, child support, and spousal support ("alimony").

The second—a "contested" divorce—is where the spouses can't agree on their divorce issues, and they end up in court, asking a judge to make these decisions for them. Whether it's one or all issues, if you disagree on anything, the court considers your divorce "contested."

Perhaps the most significant difference between an uncontested and a contested divorce is the legal process's cost and time. Although it usually costs the same to file either type of divorce, spouses going through a contested divorce are more likely to spend money on attorney's fees and expert witness fees (such as financial consultants or appraisers) than a couple that agrees on most divorce-related issues.

In many states, the law requires judges to wait a certain amount of time before finalizing a divorce. Although the waiting period is usually the same for both contested and uncontested divorces, divorcing spouses involved in a contested divorce will often see the waiting period come and go before the court decides all the divorce-related issues. As a result, an uncontested divorce is not only cheaper but will take significantly less time to finalize than a contested case.

Uncontested Divorce

An uncontested divorce means that both spouses agree on all of their divorce-related issues. Each state has specific legal requirements that spouses must meet before they can proceed with an uncontested divorce. You may want to consult with a local attorney or check your local courthouse website for specific requirements.

Even though you have to meet certain requirements, an uncontested divorce is often much easier than a contested divorce because spouses can end their marriage without constant negotiations, legal posturing, and court hearings. Thus, an uncontested divorce usually involves less stress and fewer legal fees. The uncontested divorce process also tends to preserve a relationship between the spouses, which is especially important if they have children.

However, divorcing spouses must be able to work together toward mutually agreeable resolutions in order to resolve all of their divorce issues. Although working with your soon-to-be-ex to settle important financial and child-related issues may seem difficult, it's one way to end your marriage without a full-blown court battle.

If your goal is to proceed with an uncontested divorce, but you're having trouble communicating with your ex, you can participate in mediation to resolve your issues. Mediation is a voluntary process (in most states) where a neutral third-party facilitates a conversation between the spouses in the hopes of reaching an agreement on outstanding divorce issues.

If the spouses agree, the mediator will draft an agreement to present to the court, and the judge will sign it into the divorce order. If either spouse disagrees with a contested issue, the mediator will send them back to the judge for resolution.

Contested Divorce

A contested divorce is just what it sounds like: one or both spouses contest (dispute) some aspect of their divorce. Therefore, the divorce proceedings take much longer to complete and typically involve greater stress and increased legal fees.

With a contested divorce, spouses will have to go through numerous steps before the divorce is finalized, including:

  • prepare, file, and serve (deliver) the divorce petition (legal paperwork asking for the divorce and stating the grounds for the breakdown of the marriage)
  • respond to the petition
  • interview and hire an attorney
  • engage in "divorce discovery" – the information gathering process, which involves various legal procedures to get information from your spouse and third-party witnesses (e.g., written questions, subpoenas, and depositions)
  • pre-trial legal motions and hearings
  • settlement proposals and negotiations between attorneys
  • if settlement fails, prepare for trial
  • complete a court trial, and
  • file an appeal, if you dispute the trial judge's decision(s).

During the settlement phase, spouses are often unable to resolve issues. Although the divorce judge may encourage spouses to work things out, the next step is divorce court when that doesn't happen.

During the trial, both spouses present witnesses, and their lawyers cross-examine the witnesses and present closing arguments. After the trial is over, the court will issue a final order memorializing all of the judge's decisions and finalize the divorce.

Divorce—especially contested divorces—are complex. Therefore, spouses in a contested divorce should definitely speak with an experienced divorce lawyer who can inform them of their legal rights and ensure they are fully protected.

For more information, see Ten Things You Should Know About Divorce.

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