Is Your Divorce Contested or Uncontested?

Is Your Divorce Contested or Uncontested?

Divorces are initiated by a spouse or domestic partner by filing a petition for dissolution of marriage with the court. The person who files the divorce petition becomes known as the "Petitioner." The other party becomes the "Respondent."

A good rule of thumb to know whether a divorce case is contested or uncontested is whether the parties reach an agreement on their own, preferably in writing and notarized, on the terms of the divorce. This agreement is typically known as a "Marital Settlement Agreement" (MSA) and usually includes terms such as issues of spousal support, child support, custody, visitation and community property. MSA'S usually, but not always, indicate the divorce is uncontested.

Coming to a written agreement on these issues might be beneficial and less costly for parties. MSA'S have the benefit of keeping the court largely uninvolved.

Another important factor of whether a case is contested is whether the Respondent files a "Response" to the divorce petition. If there is no response filed and served by the Respondent within 30 days of being served the divorce petition, this is considered a default matter and the case is considered uncontested.

If the Respondent does file a response to the petition but there is a MSA that leaves nothing at issue between the parties that too is considered an uncontested case.

One thing to keep in mind is that MSA'S are subject to court approval. Spouses cannot include issues in the MSA that are against public policy. Examples might include an agreement for one spouse to be relieved of the obligation to pay child support (because this would be against a child's best interests) or promises to never engage in sexual relations with anyone else again. Courts will not enforce such terms.

The way a case is considered contested is if there is a Response filed by Respondent and there is no MSA, or alternatively if there is an MSA but the parties cannot reach a complete agreement on all issues. When this occurs, the divorce is contested and parties will prepare for a trial to have a judge decide the issues.