Can I switch my divorce from contested to uncontested or vice versa?

Posted on Jul 22, 2022 by Katie Carter


No two divorces are exactly the same and they don’t always follow the same pattern. A divorce isn’t like a train on the tracks; it’s more like a roller coaster. There are a lot of highs and lows in between when the divorce proceedings are initiated and before the divorce is finalized.

Much like the roller coaster’s most dramatic drop is often in the beginning, I find that divorces are more contentious at the beginning of the process, too. Everyone’s emotions are running high, they’re nervous about the future, no one knows what to expect, and they just feel unbalanced. Though not everyone handles these feelings exactly the same, they often do end up with both parties experiencing a period of increased tensions for a while.

Eventually, though, in most cases things do settle down. I say that both to reassure you and to prepare you. The more you know what to expect, and the more you put reliable coping mechanisms in place ahead of time to help you deal with the drama, the better position you’ll be in to reach a good resolution in your divorce case.

Basically, in Virginia, there’s two ways to get divorced: (1) by negotiating a signed separation agreement, or (2) litigating in front of a judge and letting him decide how your assets and liabilities will be divided. So, either it’s up to you two, or it’s up to a virtual stranger.

Most people really don’t want a stranger divvying up their stuff, but there are cases where its necessary. Those cases, though, are relatively few and far between. Why is that? Well, there’s a couple reasons. We already discussed the first – that no one wants a stranger dividing up their stuff when they could do it themselves. Not only that, but it’s pretty time consuming and incredibly expensive to have a divorce trial, depending on what, exactly, the issues are in your case. (In general, cases with custody and/or spousal support issues are most expensive and contentious.)

But maybe you need to file a contested divorce, at least at first. Once you file, are you locked in to a contested divorce?

No! You can switch from a contested divorce to an uncontested divorce, or, conversely, from an uncontested divorce to a contested divorce. You know what else? You can also go back again!

A lot of times, people file for divorce to start. There are some common reasons, like either that (1) one party refuses to sign an agreement, (2) one party has no idea what the assets and liabilities are in the marriage to even begin to draft an agreement, (3) one party needs immediate child and/or spousal support that the other party won’t give them by agreement), or something similar. There might be some other reasons, too; like I said, each case is unique.

But that doesn’t mean you have to go all the way through to the trial just because you filed. You can negotiate an agreement at any point; in fact, the court will encourage you to do so. A lot of times, when we go to court, we end up resolving things on the court steps beforehand anyway! At literally any point, you can reach an agreement and switch over to a no fault divorce.

In fact, in most contested cases, the court will require you to do things like attend mediation or participate in a judicial settlement conference before a trial can be set. Why would the court require that? To help facilitate the two of you reaching an agreement!

Wait, why would the court do that? The court LOVES when private people settle their own disputes. It’s less for the judge to do. It means he (or she) has more time on the docket to handle things like personal injury cases and criminal matters that require his attention, rather than a family law case that can be resolved between the parties.

It means more time for golf. Just kidding. Sort of.

It means better outcomes, and outcomes less likely to be appealed, taking up more judicial time and potentially embarrassing the judge. It’s good for everyone.

The reverse is true, too.

Just because you started out trying to negotiate a separation agreement doesn’t mean that you can’t file for divorce if your negotiations fail.

So, you started out with a separation agreement but it’s not working. You can’t reach an agreement, or he won’t share information, or he’s just unwilling to budge. Whatever the case may be, you can still file for divorce as soon as you have grounds, and move through the contested process.

For a lot of couples, that’s all it takes. Once they start paying the attorney fees associated with a contested divorce, they’re suddenly more willing to negotiate.
Then, the same principle applies. You litigate until you get to a point where you either have a trial and the judge divides it all, or you settle – whether on the court house steps, by negotiating with your attorney, by participating in a judicial settlement conference, or whatever.

The bottom line is that, whether you start out your divorce on the uncontested side, and try to negotiate a separation agreement, or you file for a contested divorce and prepare to litigate, at any point you can switch tacks to suit whatever is happening at the moment.

You’re not locked in. You can switch!

For more information about the Virginia divorce process, to register to attend an upcoming Virginia divorce seminar, or to schedule a consultation, give us a call at 757-425-5200.