What is the difference between an uncontested and contested divorce?

By Theseus Schulze

February 23, 2022

This is a very common question I get from potential clients in consultations and the answer is quite simple, but before I get to that a little bit of background.

What makes divorces take “forever” isn’t whether the parties agree or disagree about getting divorced. The real delay comes from the parties determining how to best divide their stuff. Who gets the home? What happens to my pension? Will anybody need support? Things like that. Of course in marriages where the parties have children together, this process is even harder as the parties need to determine how what the custody and visitation schedule will look like, how much child support should be paid etc.

Sometimes, spouses are able to figure all of this stuff out between them, removing the need for lawyers or judges to really get involved. That means the divorce is “uncontested” and the only remaining thing to do is just the paperwork. Your lawyer will memorialize the terms you and your spouse agreed to in an agreement, often called a Marital Settlement Agreement. Sometimes it is called (in my opinion inappropriately so) a Separation Agreement. This agreement effectively operates as a contract between you and your spouse.

Once the Marital Settlement Agreement is signed, it’s shipped off to court (along with some other miscellaneous paperwork) and your lawyer effective says “Judge they’ve already divided their stuff, please divorce these two.” The judge will then sign an order divorcing the two parties in a Final Decree of Divorce. The Final Decree of Divorce generally will not have all of the terms of the agreement in it. Instead it will say (effectively) “the parties are divorced and their stuff is divided based on the agreement they signed.” This process is pretty much pain-free and far cheaper than a contested divorce.

A Contested divorce is a divorce where the parties are unable to resolve the distribution of their assets, the visitation schedule of their kids, child support, spousal support etc. If even one of those things are contested then the divorce is a contested divorce. This means you (and presumably your spouse) will need attorneys to help negotiate and bring the parties to an agreement. If that further proves impossible eventually a judge will decide. Involving the courts so extensively ends up costing far more than an uncontested divorce would.

In short, the answer I generally give is “have you and your spouse agreed on how to divide up your assets?” If the answer is “no” then it’s contested. If the answer is “yes” then it’s uncontested.