When you’re researching something new, the terminology can be confusing. The same can be said of divorce, and not only because so many Latin terms and phrases are used. “Contested” and “uncontested” aren’t words that come up very often in everyday life and, if you’re wondering what it means, you’re not alone.
If you’re like me, you don’t mind asking questions – but you’re also a little nervous about asking questions that may make you look stupid. Right? You think, “I’ve seen this word right, left, and center, so it must be this foundational concept that I just don’t grasp – so I can’t ask!” I can think of a couple of embarrassing examples of this kind of thing in my own personal life, too.
So, don’t ask. That’s totally fine, because I’m here today to answer it, without you having to do more than search it on Google – hopefully our keywords are good enough that we’ll find our way straight to the privacy of your own home. No one but you and your browser – and you can clear your cache – will know that you asked it.
I can tell you, though, that it’s not a stupid question. Not at all. This isn’t something that you do every day, and it’s only natural that you might have questions. Besides, asking questions can help you get the kind of comprehensive answer you really need to make good decisions – both now and as your case progresses.
You’re probably familiar with the dictionary definition. But this isn’t a question of understanding a word, it’s understanding a concept and how it applies in a divorce case in Virginia.
Contested means that you and your husband don’t agree. An uncontested divorce is one where you and your husband do agree – though that doesn’t mean that you agree immediately, or easily, or right away.
In most cases, there’s a negotiation process that takes place. Your case may start out contested, but ultimately turn uncontested – as you slowly, methodically, painstakingly work through and resolve your issues in a signed separation agreement.
Up until the point that you have an agreement in place, your case is contested – but that doesn’t mean that you have to go to court, file pleadings, or litigate. Some cases are litigated, and litigated cases are always contested, but not every case is litigated.
Litigation, on the other hand, refers to cases where the legal process (as in, the court system) are used to help resolve disputes. When a case is litigated, pleadings are filed. Discovery is employed. Hearings are scheduled. Trials are held. A case can be more or less litigated, because a case can resolve at different points throughout the process.
Should I file for divorce or try to negotiate an agreement first?
There are really only two ways for your divorce to resolve. Either you go to court and let the judge decide how your assets and liabilities will be divided, or you negotiate an agreement yourselves and decide how your assets and liabilities will be divided.
Many people try to negotiate a separation agreement first. Ultimately, a case where an agreement is reached is an uncontested case. Though it is impossible to estimate overall costs of a case ahead of time, the retainer cost for an uncontested case (meaning, a separation agreement case) is going to be lower than a retainer for a contested divorce.
There’s no guarantee of success. You can’t make him reach an agreement with you, and a separation agreement is only useful if the two of you can agree. Otherwise, its just a piece of paper with a bunch of ideas about how to divide the assets written on it; it’s no more binding than a shopping list written on an old receipt. It’s not easy, though, in most cases. We often negotiate back and forth for a period of time before we reach an agreement, or even employ something like a judicial settlement conference to help reach an agreement.
On the other hand, you could retain for a contested divorce. There are lots of reasons you might do this, even if it’s more expensive – if, for example, he says he won’t sign any agreement no matter what you put in it, he’s cut you off from financial support, or you have no idea what the assets and liabilities are.
Contested is a word that just refers to your case’s status – whether you’ve reached an agreement, or whether it’s unresolved. You can retain an attorney for a separation agreement, but the divorce itself is not uncontested until the agreement is signed.
Worst case scenario, you could take a contested case all the way through to the end, from filing divorce in the circuit court to the trial, where the judge divides the property and grants the divorce. You could also file for divorce, litigate for awhile, and then ultimately reach an agreement – finalizing your divorce on an uncontested basis. Still other cases never file anything with the court until after their separation agreement is signed, finalizing their divorce on an uncontested basis. These are often the easiest and least expensive, but ultimately it all depends on how long it takes to reach an agreement and how hot and heavy the negotiations become.
Negotiating with an attorney is one way to get an uncontested divorce. You could also hire a collaboratively trained attorney and go through the collaborative divorce process. Alternatively, you could work with a mediator to get an agreement in place. Still other people try to negotiate their own agreements, without involving attorneys, though, of course, I have to tell you that this comes with a certain amount of risk if you’re not that familiar with divorce laws in Virginia.
No two paths through the divorce process are exactly the same. So much depends on you, your husband, the attorneys you hire, the judge assigned to your case, and any other unique factors involved in your case. I’ve done so many divorces now, I can pretty confidently tell you that I’ve never seen two that are exactly the same.
Most people’s goal is to get an uncontested divorce – and that’s a good goal! – but you also have an overall strategy and a bottom line in place. A good plan of action is to talk to a divorce attorney first, to get an idea of your rights and entitlements under Virginia law. Not quite ready to talk to a divorce attorney? I hear that a lot. A good place to start, then, is with one of our free books, or even by attending one of our monthly divorce seminars.
For more information, give us a call at 757-425-5200. We’re here to help!