Explaining Contested and Uncontested Divorces

Explaining Contested and Uncontested Divorces

No couple walks down the aisle expecting it to end in divorce court, but life sometimes takes people in unanticipated directions. Fortunately, not all divorcing spouses have to litigate their divorce inside a courtroom. A divorce trial means an impartial judge who doesn’t personally know their situation makes all the final decisions for how the spouses live their post-divorce lives. Many spouses manage to put their hard feelings aside to draft their own divorce settlement agreement, understanding that negotiating the agreement between themselves out of court saves time, money, and contention. But how does this process work, and what makes an uncontested divorce different from a contested one? Here’s how a Phoenix divorce lawyer can help navigate these different divorce processes.

Divorce Grounds in Arizona

Many people new to the divorce process in Arizona, confuse contested vs. uncontested divorces with grounds for divorce vs. a no-fault divorce. Those in traditional marriages (vs. covenant marriage) do not need to file for divorce on grounds such as abandonment or adultery as they once did in The Grand Canyon State. Now, divorcing spouses in Arizona need only divorce on the grounds that their marriage is “irretrievably broken.” This isn’t to be confused with a contested divorce vs. an uncontested divorce in Arizona which has little to do with their grounds for divorce but instead refers to whether the spouses agree on their divorce terms or dispute one or more terms in court.

What is an Uncontested Divorce in Arizona?

No divorce is easy, but spouses who achieve an uncontested divorce make the process much less complicated, time-consuming, and adversarial. In an uncontested divorce, both spouses communicate and compromise on all aspects of their divorce arrangements including:

  • Child custody/parenting-time schedule
  • Child support
  • Division and fair distribution of their marital assets and debts
  • In some cases, which spouse retains the family home and,
  • Spousal support

In the best-case scenario, divorcing spouses seeking an uncontested divorce openly discuss their divorce terms and work out a mutually acceptable settlement agreement completely on their own or —more commonly—with the help of their attorneys. Divorce attorneys who work with spouses seeking an uncontested divorce often set up meetings where both parties and their lawyers discuss and negotiate divorce terms. The attorneys draft the settlement agreement for both spouses to sign and present to a judge. If negotiations are not enough to resolve all disputes, attorneys routinely facilitate meetings with a professional mediator. A mediator is a neutral third party who is well-versed in Arizona divorce law. In one or more mediation sessions, the mediator makes suggestions for reasonable resolutions that the spouses may not otherwise consider on their own. Mediators do not make binding decisions but instead suggest compromises, offer workable parenting time schedules that suit the family’s individual needs, and provide a safe, neutral space for spouses to compromise on any disputed issues. Then the attorneys draft the settlement agreement based on the decisions the spouses made in mediation and present them to the judge in the jurisdiction to sign into binding orders in the divorce decree. Judges almost always sign an uncontested divorce agreement. The only exceptions occur when a judge finds the agreement egregiously unfair to one spouse or suspects the settlement agreement was signed by one spouse under duress.

About 90% of Arizona divorces are uncontested and resolved through mediated settlement agreements. Contact a Phoenix uncontested divorce attorney who could help explain the nuances of the common uncontested divorce process.

What is a Contested Divorce in Arizona Divorce Courts?

Contested divorces in Arizona are far more time-consuming, expensive, and complicated compared to uncontested divorces. They typically occur because the spouses have multiple disputes they are unable to resolve or because they hold bitter feelings and are seeking their day in court. Some divorce trials are necessary because mediation cannot resolve serious disputes such as a parent seeking sole custody because they believe the other parent is a danger to the children. In these cases, the divorce proceeds to a divorce trial. At the trial, both sides present their arguments through each spouse’s testimony, evidence, and eyewitness testimony. In some cases, expert witnesses such as family counselors also testify or present evidence. 

Going to court typically adds six to nine months or more to the divorce process compared to an uncontested divorce. It also costs far more. Another drawback of a contested divorce is the fact that all evidence and testimony become matters of public record when litigated in court vs. remaining confidential in an out-of-court settlement.

Can Spouses Reach an Agreement During a Divorce Trial in Arizona?

Many spouses request a return to mediation and other forms of alternative dispute resolution (ADR) during their divorce trial. Some divorcing spouses aren’t ready or willing to face each other and communicate to reach compromises during the emotionally fraught early days of the divorce process but become more willing once the stress of a divorce trial brings them together in a courtroom. In other cases, information comes to light in the courtroom that makes returning to mediation a more attractive idea for one or both spouses.

A judge may order divorcing spouses to try mediation or return to mediation during the trial and temporarily suspend the trial in the hopes that an agreement is reached in mediation. Finally, some spouses decide to return to negotiating their settlement agreement with or without a mediator when a divorce trial becomes a lengthy and unaffordable process. Mediation is far less expensive than arguing disputes in court. Divorced spouses sometimes return to mediation after the finalization of the divorce if one spouse seeks a modification of one or more orders on the divorce decree.

What About Collaborative Divorce in Arizona?

Collaborative divorces are becoming increasingly common. In a collaborative divorce, both spouses agree to keep their divorce private and out of divorce court through a set of rules that compel the spouses to attend meetings and negotiations as a group with their spouse and both attorneys to keep the divorce out of court. The goal of a collaborative divorce is to facilitate communication to reach a peaceful resolution for both parties and any children they have together. A collaborative divorce requires a willingness to communicate openly and honestly to reach compromises without rancor or contention. Spouses who achieve a collaborative divorce have an improved chance of going on to have an amicable post-divorce relationship that makes it easier to exchange children and continue co-parenting together.