What does uncontested divorce mean?

Posted on Feb 19, 2021 by Katie Carter

On Wednesday, we discussed what a contested divorce means. We touched a little bit, too, on uncontested divorce – because it’s hard to understand one without the other.

Contested refers to a divorce where the parties have not reached an agreement about how the assets and liabilities will be divided; in an uncontested divorce, on the other hand, the parties did reach a decision about how to divide it all. That’s not to say that they knew from the beginning that they’d be able to reach a decision about how to divide it, or that it happened easily.

An uncontested case is one that culminates in a separation agreement and subsequent filing for an uncontested divorce, but the process – like in a contested divorce – can take many different shapes, depending on the parties, attorneys, and others involved in the case.

Divorcing women run the gamut. Some tell me, “Oh, this is going to be the most horrible case ever, we’ll never agree to anything ever, never”, and others tell me, “Oh, it’s super easy, shouldn’t take any time, and will likely cost about $0.”

I’m being facetious. But it is true, both of those women exist, and I see them a lot. Just today a sort of former friend texted to ask me about the uncontested divorce process. She told me that it should be easy, because they worked everything out. We talked a bit about it, how it works, fees involved, etc., and then she said, “Is it okay if maybe we leave custody for later?”

…But I thought it was all worked out?

Anyway, the information I give you is only as good as the information you give me. Maybe you do have it all worked out, and you’ll hit no bumps at all, in which case it would be quite easy. (Though, in absolutely no case will it cost you $0; at the very, very least, you’ll pay a filing fee to the circuit court where you’re filing, which will run you around $90.) And, no, you can’t leave custody for later.
In order to get a divorce – whether contested or uncontested – you’ll have to divide your assets and liabilities. If you can’t do it yourselves, you’ll need a judge to do it.

So you can’t just get an uncontested divorce without first negotiating a separation agreement, and that’s two separate and distinct processes.

Once you’ve negotiated your separation agreement, the uncontested divorce procedure is really fairly easy. In most courts, you don’t even need a hearing anymore. Some courts – I’m looking at you, Virginia Beach Circuit – will require you to have a hearing if you lived separate under the same roof for any part of the separation period. But most courts these days will allow you to just finalize a divorce by affidavit, and never even appear.

A divorce by affidavit is just a matter of filing the right paperwork. It can be more or less difficult, depending on the types of assets to be divided. If you have several retirement accounts, for example, there could be more than one QDRO (qualified domestic relations order) going back and forth, plus there could also be name change orders and other moving pieces to resolve.

Typically, we do two separate retainers – one for the separation agreement, and another for the uncontested divorce. That’s to differentiate from a general “divorce” retainer, which implies that the case will be contested.

Though your case isn’t officially uncontested until the agreement is signed, sealed and delivered, you’re definitely on the uncontested track if it’s your goal to negotiate a separation agreement.

Of course, you can’t make him agree. That’s the biggest limitation on the uncontested divorce. Your intention to keep things uncontested – and out of court – is only one side of the equation. Though he can’t stop a divorce, if he’s not willing to come to the table and negotiate, you may have to seek a contested divorce.

There are other reasons you might seek a contested divorce, too. If you don’t have any idea what the assets and liabilities are, or if he’s cut you off from financial support and you need to have a pendente lite hearing, those are signs to me that an agreement may not be immediately possible.

A case can go, though, from contested to uncontested, or uncontested to contested, depending on how things are going. In many cases, even where a contested divorce is filed, the parties are ultimately able to reach a resolution and finalize an uncontested divorce.

You’re in the right place, and you’re asking the right questions. A big indicator of success is whether you take the time to get the information, understand the process, and strategize from there. Figure out where you want to be, and what you want your happily ever after to look like, and then structure your choices from the beginning to reflect that intention.

It’s not a perfect world, and you may hit some bumps in the road. That’s okay. You can give yourself some grace, accept that some mistakes will occur, and continue to do what you can to smooth the way for yourself and your children. We’re here to help.
For more information, or to schedule a consultation with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at 757-425-5200.