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Contested Divorce versus Uncontested Divorce: What is the Difference?

Published in Family Law on June 5, 2017.

Indianapolis Family Law Attorney Handling Uncontested and Contested Divorces

wedding rings and a judge's gavelIn many states there are two paths for divorce; contested and uncontested.  Indiana law does not recognize the difference, it is merely based upon how the litigants intend to conduct themselves in dividing their assets and debts.

Court costs, filing fees, attorney document drafting fees and services costs are the same regardless of whether or not you and your spouse contest the divorce.  The 60 day cooling off period is also the same regardless of any contention in your divorce.   So, what’s the big difference?  Attorney’s fees, expert fees, appraisal costs, and possibly some unanticipated tax consequences.

What is a Contested Divorce?

A contested divorce in Indiana is one where the couple cannot agree on every issue in their divorce settlement; therefore, requiring the court to determine at least one disputed issue.

In this case, the divorce attorneys representing each side must seek resolution through the court, and a judge will determine the outcome of the divorce case.

The Disadvantages of a Contested Divorce

While you and your spouse might not agree on every issue, enduring a contested divorce is costly, lengthy, and stressful. Couples should always try to work through their differences and seek alternative dispute resolutions rather than take divorce litigation to court.

When your case goes before the judge, you both have disadvantages. After all, the judge is not emotionally tied to the outcome of your divorce proceeding, and he or she will rule as the statute indicates. Therefore, the settlement you receive from a judge might be less fair than the one you would have arranged in negotiations with your spouse privately.

Some disadvantages to a contested divorce include:

  • Higher Divorce Costs – Divorce is expensive, but it does not have to be something that puts you close to bankruptcy. When divorces go through litigation, the cost rises substantially. You spend thousands in attorney’s fees, court costs, experts, and more.
  • Your Divorce Takes Longer – A contested divorce takes longer than an uncontested divorce because of court calendars alone.  Add in expert investigations and valuations and their schedules and you could be measuring your divorce in years. Therefore, you must go through the emotional, time-consuming process for longer than you might realize.
  • The Statute Takes Over – You might want to keep the car your husband bought you or stay on your wife’s health insurance, but when you have a contested divorce, the court is less inclined to tailor your decree to you.  Deal-worthy items are ignored and the judge follows the statute.

Sadly, contested divorces are common. Couples with children or higher valued assets often find themselves disagreeing on how to handle marital assets and liabilities. Parents might disagree on parenting time and parenting plans for minor children, or one spouse may contest the idea of paying the other temporary spousal support rehabilitative spousal maintenance.

What is an Uncontested Divorce?

Uncontested divorces are often referred to amicable divorces, but this is an incorrect characterization. A couple can have an uncontested divorce without being friendly about it. In fact, many couples disagree or have negative feelings, but they keep those opinions out of the divorce negotiations – streamlining the process.

An uncontested divorce, sometimes called a “simple” divorce happens when each spouse agrees on how to terminate their marriage. Nothing is unresolved or disputed. Instead, the process is finalized and each spouse goes on their way to a new life upon the court signing the agreed decree

What Must We Agree on for an Uncontested Divorce?

To have an uncontested divorce, you have several factors that you must agree on and include in your settlement. You still must present the agreement to a judge for approval, but the process is much faster (and cost-effective) when a judge does not hear each side’s arguments.

Some issues you must address and agree on include:

  • All Financial Terms of the Divorce – Any marital assets must be accounted for and awarded. Also, you and your spouse must agree on how you will handle difficult marital assets, like retirement accounts, investments, or the family home. Furthermore, you and your spouse must distribute liabilities (debts) reasonably.
  • Child Custody – If you have minor children, you and your spouse must agree on child custody and parenting time. Decide who will maintain primary custody of the children and how often the other parent has time with them. Create a schedule you both can agree with or use the Indiana Parenting Time Guidelines’ guidance.  Keep in mind the Guidelines are a minimum for a non-custodial parent.
  • Support – Child support comes after you decide custody and parenting time terms. The spouse that has parenting time, but is not the primary custodian, usually pays the custodial parent child support. These amounts are based on the number of children and each parent’s income, health insurance costs, daycare costs,  and parenting time. Your divorce attorney can help you calculate child support based on the Indiana Child Support Guidelines.

Are There Benefits to an Uncontested Divorce?

Yes. The main advantage of uncontested divorces is the savings. You do not spend money on countless hours of litigation or court costs. Instead, you streamline the process.

Proceeding with an uncontested divorce means fewer conflicts, which might not only make it easier for you and your spouse, but any minor children involved.

Do You Need a Lawyer for an Uncontested Divorce?

Yes, you do.

While uncontested divorces do not require litigation, you still have paperwork, legal procedures, and the statute to follow. An attorney knows the divorce process and helps save time and hassle. Also, you still want a lawyer there to protect your best interests. While you have statutes to guide you, your attorney can ensure that you receive a fair settlement by the guidelines.

To make the process easier, your attorney also negotiates with your spouse’s attorney and drafts and agreement so that you do not have to worry about complicated legal paperwork.

Speak with a Divorce Attorney in Indiana Today

If you and your spouse have decided that it is time to divorce, speak with a family law advocate. Whether your divorce is complicated or running toward an uncontested proceeding, let the attorneys at Eskew Law assist you through the process.

We can help you complete your divorce paperwork, find a reasonable settlement, and lessen the burden on you and your family.

Schedule a consultation today at 317-974-0177 or request more information online.

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