In California, there are two main ways to get divorced. The first is uncontested and the second is contested. Contested cases are the ones that most people think of when they think of divorce cases, there are courtrooms, attorneys in suits and a judge sitting on the bench. There is oral argument and at the end of the hearing, the judicial officer will issue an order. What many people don't realize though is that the vast majority of divorce cases never see the inside of a courtroom. These types of cases are considered uncontested. Uncontested cases are cases that are settled outside of court but still have the force and effect as if you went to court to get your orders. There is pros and cons to an uncontested case, and we will discuss them here so that you can determine whether this type of case would be appropriate for your separation.
ADVANTAGES OF AN UNCONTESTED DIVORCE
1. COST. Uncontested divorces save money. Uncontested divorces are significantly more affordable then contested divorces primarily due to the less amount of attorneys fees that are incurred by both parties in bringing the case to resolution. Because these cases don't involve substantial law in motion or court appearances and travel costs, the overall attorneys fees for these types of cases make them significantly cheaper.
2. CONTROL. The ability to resolve your own case. Uncontested cases allow for litigants to control their own destiny so to speak. It allows for them to be in control of the decisions that are made on their case and whether they want to agree to specific terms or not as a part of the divorce judgment. In contrast, in a contested case, you are making an appeal to a judicial officer or a judge to make a decision for you based on what they believe is fair, equitable and consistent with the law.
3. SPEED. Uncontested cases are much faster. There is no need to wait for available hearing dates on an uncontested divorce case. You are free to settle the case from the very outset of the filing of the petition or possibly even beforehand.
4. CIVILITY. Perhaps the biggest advantage of an uncontested divorce case is that it's far less contentious than a contested case. Because you are settling your case by an agreement, there is much less hostility and anger associated than if you were to have to go into court and have a judge issue an order. This is especially important for parties who share custody of children. Maintaining that amicability is especially important for parties who need to make co‑parenting decisions.
5. RISK AVERSION. Uncontested divorce cases eliminate risk. Because you are aware of the orders that you are agreeing to in your settlement, there is no possibility that a court could enter an order that would be unknown to you or you would not be agreeable to.
DISADVANTAGES OF UNCONTESTED CASES
There are disadvantages of an uncontested case and they revolve primarily around the notion that you don't get your day in court. If there are certain facts or legal theories or arguments that you believe that would have convinced the judge to issue an order in your favor, by entering into an agreement in an uncontested fashion, you are no longer able to present those arguments to the court at that time. Some of those facts may be especially important if they pertain to issues such as domestic violence, emotional or financial abuse, parenting styles in custody cases, or other facts that might be determinative to custody issues down the road.
In addition, you may need to concede on certain things that are especially important to you in order to obtain a global settlement of your divorce case. There are a number of issues in any divorce case that need to be resolved as a part of a settlement and concessions are made by both sides in order to obtain that settlement. No one is able to get everything that they want as a part of the settlement, there are certain issues that may be important to one party that they might have to concede upon in order to obtain that agreement.
In weighing the advantages and disadvantages of an uncontested case is evident that the advantages significantly outweigh the drawbacks. As an attorney, I encourage all of my clients to explore the possibility of proceeding in an uncontested manner because of the significant savings in costs but also the ability to maintain a civil and amicable relationship with the other side. This is especially important in cases in which parents share custody of a child. In addition, the ability to control your own destiny by knowing what orders you're agreeing to, rather than risking an adverse order in court makes an uncontested divorce case a much preferable option in obtaining a separation. For these reasons, if given the option, I would proceed in an uncontested manner for all of my cases, whenever possible.