Is the Divorce Contested or Uncontested?

Is the Divorce Contested or Uncontested?

The general public often confuses a “no-fault” divorce with an “uncontested” divorce. These terms are not synonymous. The fact that a divorce may be brought on the ground that the marriage is irretrievably broken does not, of and by itself, mean that the divorce proceedings will be uncontested.

When Is a Divorce “Uncontested?”

In an “uncontested” divorce, the parties have generally decided between themselves those issues that would otherwise be left for the judge or jury to decide (e.g., custody, visitation, alimony, child support, post-high school education, medical/dental/hospital expenses, insurance, division of real and personal property, debt allocation, tax liability, attorneys fees, etc.). In this situation, you are bringing the necessary information to the lawyer and requesting that appropriate documents be drafted so that a divorce may be obtained. This scenario does not generally require the attorney to advise you as to the adequateness of any support payments (except child support), the reasonableness of the property division or anything else involving the finances of the parties.  Furthermore, strictly from the standpoint of court time involved, the attorney only needs to make one very short court appearance with you in order to obtain the divorce.

When Is a Divorce “Contested?”

The situation is entirely different in a “contested” divorce action. This is true regardless of the ground(s) upon which the divorce action is based. In such a situation, the parties are unable or unwilling to arrive at a mutually acceptable consensual arrangement. You are specifically seeking legal counsel and advice as to what would be an appropriate custodial arrangement, equitable division of property,  a sufficient amount of support payments, or an equitable allocation of marital debt. In a contested case, your attorney will avail you to discovery methods to learn about the finances, positions, and contentions or your spouse.

In a contested divorce action, some type of standing order is usually issued with your divorce petition. This prohibits either party from transferring real or personal property except in a bona fide transfer or in payment of preexisting debts. Neither party can transfer or sell the marital assets to the detriment of the other party. In addition, a “lis pendens” notice is often filed with the Clerk of the Superior Court to prevent the unauthorized transfer of any real property owned by the parties to an innocent third party, unaware of the claims being made in the divorce action. Furthermore, if appropriate to your case, such a restraining order will also prohibit either party from removing the minor children from the state of Georgia without a court order.

The fact that a divorce may initially be handled as a contested action does not mean that it must ultimately be tried in open court. It is quite possible, and even somewhat probable, that after the discovery process has begun and the initial shock of the divorce is over, the parties, by and through their respective legal counsel, can arrive at a mutually acceptable settlement agreement.

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From offices in Atlanta, Kupferman & Golden, Attorneys at Law, advises and represents clients in communities throughout in metro-Atlanta, Georgia, including Fulton County, Gwinnett County, Cobb County, DeKalb County, Cherokee County, Hall County, Douglas County, Clayton County, and Forsyth County, including the communities of Buckhead, Decatur, Marietta, Alpharetta, Cumming, Lawrenceville, Duluth, Dunwoody, Johns Creek, Roswell, Smyrna, Sandy Springs, Brookhaven and Norcross, Georgia.