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Difference Between a Contested & Uncontested Divorce

If you are filing for or facing a divorce, you may not fully understand the difference between a contested and uncontested divorce. The differences are actually simple to understand, but the processes behind them can be quite complex. In short, a contested divorce is one in which both parties do not agree on the issues, and an uncontested divorce is one in which the parties do agree.

Contested Divorce

To put it simply, a contested divorce is one in which one or both spouses disagree on one or more issues raised by the divorce. This is the case at first in the vast majority of divorce cases. Commonly, disagreements occur over one or more of the following issues:

  • Visitation with children
  • Child support
  • Alimony/spousal support
  • Division of assets
  • Division of financial gains

In the case of a contested divorce, both spouses must file documents that relay their positions on the disputed issues. For instance, the husband may want the children to live with him, but the wife may also want the children to live with her. If the spouses can come to an agreement before the divorce proceedings take place, then the divorce becomes "uncontested". However, when the spouses rely on a judge to make the decision for them when they cannot reach an agreement otherwise, the divorce remains contested.

Uncontested Divorce

Fortunately, most of the divorces that take place in Canada ultimately take place under the uncontested docket. This means that both spouses ultimately agree on all of the issues presented by the divorce, including visitation and support as well as the division of financial gains and assets. In many cases, the spouses do not agree at first. After some time and some negotiation, and perhaps even with the help of their attorneys, they usually come to an agreement that allows the divorce to proceed uncontested. In fact, 95% of all divorce cases settle before the trial, which expedites the process and makes things simpler for everyone.

How to Handle a Contested Divorce

Whether you are the spouse filing for divorce or you do not agree with the terms of the divorce upon receipt of the affidavit, you have the right to line out your own terms as long as they are fair and lawful. When you file for divorce, your lawyer includes your wishes and terms in the affidavit. Then, when your partner receives the affidavit, he or she can "contest" your terms via a signature, or he or she can simply decide not to respond, which allows the divorce to proceed uncontested. If you contest the terms, or if your partner does, rest assured that your lawyers can help you come to an agreement in most cases to reduce the length of the proceedings.

In reality, almost every divorce in Canada falls into both categories at some point. Many people believe that they agree on all of the issues at hand, only to find out they do not. Conversely, couples often believe they disagree, but later, through negotiations with their lawyers, they can come to an agreement and avoid the lengthy, painful proceedings associated with a contested divorce.