By Haley K. Burnside
The terms “uncontested” or “contested” are common references when discussing family law cases, but what do these terms actually mean? People often treat these as two completely separate categories with very rigid definitions, but in reality, these terms are better thought of as descriptions of where a case starts, not necessarily where it ends.
What does it mean to be “uncontested”?
When someone tells me their divorce is uncontested, I interpret that to mean “we already have a deal for the most part, we just need help putting the legal paperwork together.” In other words, the parties are already on the same page from the beginning. They generally know the agreed possession schedule for the children and how the property will be divided. While there may still be some details to negotiate and finalize, there is already a framework in place made by two people who share a common goal and understanding.
These cases require fewer steps because the difficult work of reaching an agreement has already largely occurred before an attorney even gets involved. A case that begins as uncontested will not have hearings, formal discovery, or intermediate steps in the typical divorce process.
What does it mean to be “contested”?
Many people assume that a contested divorce means the parties hate each other, that trial is inevitable, or that someone is refusing to get divorced altogether. While that may be true sometimes, more often a contested case simply means work still needs to be done before resolution can happen.
For example, if:
- you are not sure how your spouse will react to the divorce
- you do not know what possession schedule the other parent wants with the children
- you are uncertain what assets or debts exist in the marital estate
- you suspect that your spouse is hiding things from you
If those things exist, you are probably starting on what I would call a contested footing.
That is not necessarily bad. It simply means there are additional steps required to get you into a position where settlement becomes possible.
Most Cases Start “Contested” and Eventually Settle
One of the most important things to understand is that just because a case starts contested does not mean it stays contested. In fact, most family law cases settle. Most people gradually move from the contested bucket into the uncontested bucket over time.
The purpose of the litigation process is not necessarily preparing for trial, but instead to gather information, creating certainty, and getting people into a position where they feel comfortable settling their case.
Why Some Issues are Harder to Settle Than Others
There are certain issues, however, that naturally create more conflict than others and land you squarely in the contested category for the foreseeable future. This article discusses a few that come to mind to give context.
Separate Property v. Community Property. One common example is disputes regarding whether a valuable asset is separate property or community property. These cases can be difficult because the risk analysis between the parties is often uneven.
For example, suppose one spouse claims a highly valuable asset is separate property while the other spouse argues it is community property. If the spouse arguing that the asset is community property loses that argument, they may receive nothing from that asset. On the other hand, if the spouse claiming separate property loses, they often still retain a substantial interest in the property. That imbalance creates difficult settlement discussions because the parties are evaluating the same risk from very different perspectives.
Right to Determine Residence. While there is often times a parent who has undisputedly been the historical primary caregiver of the children, sometimes that is a contested dispute in the case. This is becoming increasingly more common with modern families in which both parents work and divide the child related responsibilities more evenly.
Or, perhaps the historical primary caregiver has done something in the years leading up to divorce that create concerns for the other parent. Or, perhaps one parent wants to move away with the child and the other parent strongly opposes it.
Cases with strong, fundamental differences about who should have the right to determine the residence of the children, and especially relocation cases, frequently remain contested until the end and have to be decided by a judge or jury.
In Conclusion
A contested case today does not necessarily mean it will still be contested tomorrow.
Many people come into my office worried because they believe that if their case is “contested,” it automatically means years of litigation, endless conflict, or trial. That simply is not true. More often, it means there are questions that still need to be answered, information that still needs to be gathered, or issues that need to be worked through before meaningful settlement discussions can happen.
Understanding where your case starts is important, but understanding where it is likely headed is usually much more important.