The phrases contested divorce and uncontested divorce can be misleading. Let’s take contested divorce first, because its meaning is clearer than uncontested divorce. From the court’s viewpoint contested means that the case ended with a trial, the judge decided the issues, and the decision is attached to the one page mandatory judgment form as the terms of the judgment. Of course, there are trials and there are trials. In some cases the parties can agree on all issues except one or two, and those are the only issues decided at the trial. In that event the terms of the judgement are a combination of the judge’s decision on a few issues and the parties’ agreement on the rest.
If there is no trial the divorce is uncontested. All cases in which the parties reach a settlement on all issues are uncontested in this sense. From the parties’ viewpoint the case may have looked like World War III, but it just didn’t go to trial. Instead it settled completely, the parties signed a Marital Settlement Agreement, and the judgement (with the Agreement) was entered without a final battle between them.
There is a subcategory of uncontested divorces that deserves special mention. Those are default cases. There are two types. In the first, the respondent refuses to discuss the issues and doesn’t file a response to the petition. At the petitioner’s request, after the time to respond has expired (30 days after service), the clerk enters the respondent’s default. After that, the respondent has no right to participate in the proceedings, and the judgment is entered on the basis of evidence presented by the petitioner alone, by written declaration or orally at a “prove up” hearing.
The second type of default case might be called default by design. Here the parties have settled all issues, signed a Marital Settlement Agreement, and want to avoid paying two filing fees (one for the petition and one for the response). The petitioner takes the respondent’s default, and the judgment is entered on the basis of their Agreement.
In practice many couples separate initially on good terms and one or both of them expect an uncontested divorce without any court hearings. Most of the time this expectation is unrealistic and not fulfilled. However, it is the source of many calls we get from potential clients asking us what the cost would be of an uncontested divorce versus a contested divorce. The question is impossible for us to answer, except to say that in simple cases where the parties do prove to be in agreement on everything with no arguments, the cost might be a few thousand dollars, while the cost of a contested divorce will be much more.
When the parties have come to hate each other, especially when they have children, high incomes, and numerous high value assets, significant fees and costs are likely to be incurred, despite our best efforts to save our clients stress, time, and money by draining the emotion out of their cases and creating a climate more condusive to agreement than argument. We can and will deal professionally and successfully with high conflict cases, but we believe our clients’ best interests (as well as their children’s) are better served when high conflict can be reduced with the help of our experience and sensitivity. Please call us for an appointment to discuss your case.
San Diego Divorce Attorney Stanley D. Prowse welcomes your legal inquiries.