Editor's Note: This week we are revisiting posts and topics that are still relevant and important today.
When it comes to planning your divorce—and trying to figure out with route to take—you may hear a few opposing terms thrown around by friends, advisors, or even lawyers. In the following blog, we will break down the three common “versus” in divorce and knowing the difference might help you narrow down your options. Read on to learn about:
Uncontested vs. Contested Divorce; No Fault vs. Fault Divorce; and
Uncontested vs. Contested
Deciding between a contested and uncontested divorce is a crucial step in the divorce process.
To be clear, this is not as cut-and-dry as a ‘yes-no’ decision. The difference between a contested and uncontested divorce lies in whether you and your spouse agree on the major issues—property distribution, alimony, custody, and the like.
If you work through the issues of your divorce amicably and come to a joint resolution over how to proceed, you have an uncontested divorce.
However, if you cannot come to an agreement, you have a contested divorce. Are the benefits to both? Yes. Refer to the following table:
· Might not need to take the divorce process to court if you can agree ahead of time
· Save on time and money if you do not need to hire an attorney to assist with the process
· Going to court is a very public thing to do; mediation is private.
· If you are in a compromising situation—such as a dangerous household or a victim of domestic violence—a contested divorce lets a judge settle the matter and review the facts of your divorce
· Though it is a longer process, you have more time to reflect on your reasons for divorce and plan for your future
· Non-appealable, meaning you cannot take your spouse to change your agreement; you can, however, still modify it.
· A longer process involving discovery, settlement, trial, and even appeals
· More expensive than an uncontested divorce
· Decision over property distribution left to a judge
You do save some with an uncontested divorce, but it is still a process in its own right. Even though you might want to save money on legal fees, get in touch with an attorney to discuss your legal options heading into divorce. They can help provide a jumping-off point for your divorce.
No Fault vs. Fault
On top of whether you can agree on how to distribute property and assets is an added layer: fault or no-fault.
No-Fault divorces are much more common and usually occur when there are irreconcilable differences between a couple. In other words, the reason for divorce isn’t the fault of either you or your spouse—it’s a more mutual decision (it’s also the ‘more preferred’
Complications arise in Fault divorces, which occur when one spouse indicates their intent to end their marriage on at least one proven ground. Many in this position allege fault with the hopes of pursuingan absolute divorce—or a divorce that ends a marriage immediately.
If you pursue this type of divorce, you must prove at least one of the following fault grounds:
Evidence your spouse was disposed to and had the opportunity to engage in extra-marital intercourse
Must prove the deserting spouse intended to end the marriage, stopped living with them, was unjustified in leaving, they didn’t consent to the desertion, and the two have not maintained contact for a full year
Proof of an act of cruelty in the case of physical abuse, or demonstration there is no reasonable expectation of reconciliation
A demonstrated pattern of domestic violence or abuse of a minor child
Conviction of a Crime
A jail sentence of over three years s or an indeterminant sentence for 12 months following a conviction
In any case, if you are concerned with safety and long-term stability, many of these fault grounds cause divorce to go into effect immediately and have no waiting period.
Having trouble proving these grounds to their fullest extent? Call an attorney. Someone skilled in family law will help thoroughly and expertly prove your case for divorce.
Arbitration vs. Mediation
Finally, we will look at one of the methods of divorce mentioned earlier and one of its similar counterparts: mediation and arbitration.
Mediation occurs in a few ways. The general process usually goes as follows:
A couple seeking a non-court divorce may seek out the help of a mediator.
They will gather information about the divorce from each spouse—collecting relevant documents, conducting interviews, until eventually providing either parties with the opportunity to provide a statement. You can have legal support during mediation for advice.
At the end of the process, the mediator brings both spouses back together for a final meeting to either help draft a written agreement or entertain any final discussions.
Courts may mandate mediation for spouses to talk about important child custody issues. This is usually very low cost. You may agree on certain things in mediation, but there is a chance you might not cover every aspect of your divorce.
Arbitration, on the other hand, differs in a few ways. Rather than a mediator, divorcing couples hire an arbitrator: a private judge who has similar powers to a family court judge, who you pay by the hour. If you need help choosing an arbitrator, you and your spouse’s attorneys can assist in the selection process.
From there, the process looks a little bit like a court scenario; you will work with your lawyer to build your case and gather evidence leading up to the date of arbitration. Unlike court, though, arbitration is private and easier to schedule—on the other hand, like mediation, it’s much more expedient.
Another similarity to mediation and uncontested divorces is an arbitrator’s decision is non-appealable. Their decision is final and binding, and appealing it in court is no longer an option once both parties sign the agreement.
However, if you are looking for a process that shares aspects of mediation and the formal court process, arbitration might be your best option.