There are two kinds of legal divorce: a divorce that doesn’t end up in court, and a divorce that does. We’ll explain both. If you’re facing the end of a marriage, understanding your options can help you to make the best choice for your circumstances.
You’re already dealing with the emotional parts of undergoing a major transition, and perhaps you’re facing the loss or partial loss of time with your kids. But there are ways to make the financial and legal elements of this separation more manageable.
Uncontested Divorce: A Smooth Separation
Sometimes, spouses separate amicably. They agree to evenly divide the assets they have acquired during their life together. They agree about who’s getting child support and how much, who’s paying alimony — payments to a spouse after a divorce — and how much, and who’s getting the house. They enter into what’s known as an uncontested divorce, a kind of out-of-court settlement, and simply file a joint petition for divorce with a county clerk’s office. Different states know this document by different names, including complaint or joint petition.
One spouse will file the petition, which includes information such as names, dates, requests, and the grounds for the divorce.1 Papers are then served to the other spouse, and together the couple will outline the terms of their divorce in a settlement agreement. A judge will review the agreement to be sure it doesn’t violate any laws, and then approve it. In some states, the whole process can be completed through the mail; in others, one spouse has to show up to court once; in others, both spouses have to go once. The divorce can be done in a few months and doesn’t require lawyers, though some couples feel more comfortable hiring an attorney to guide them through the process.2 If you don’t hire a lawyer, your only expense is the filing fee, which varies by state and county.
While an uncontested divorce might sound like the most hassle-free option, it’s worth noting that agreements you make now lack legal teeth, so to speak. What if your spouse stops paying child support, for example?3 What if she dates someone who doesn’t feel the same way you both do, at this point in time, about your ongoing financial and custody arrangements? Whether or not this feels like a real concern for you will depend on the specific nature of your relationship with your spouse.
Contested Divorce: A Court-Ordered Arrangement
A contested divorce is a lot more complicated and a lot more expensive. It’s the reason matrimonial lawyers exist. When a couple can’t agree about how to divide the kids and the money, the court decides for them. They become entangled in litigation, which by definition turns them into adversaries. Even the language we use to describe the courts presumes that plaintiffs and defendants are fighting each other: you take someone to court, you engage in legal battles, you defend yourself, you win.
But there are various reasons this may seem like a couple’s only option. You probably know people who have chosen to undergo the process of a contested divorce. One partner might feel the other was responsible for incurring all shared debt, and argue it’s unfair to divide the debt evenly. Or a spouse might feel that she shouldn’t have to pay alimony because she already supported her husband financially throughout the marriage. One parent might protest sharing custody, believing he is a better, more stable parent.
Extricating two interwoven lives from one another can be tricky. Often, emotions are running high and fear of the future is echoing loudly for both parties. Contested divorce hearings can last for months and require many court appearances. A contested divorce can cost anywhere from $20,000 to $100,000.1 Expenses include lawyers, realtors, and even therapists for the children.
In the end, a judge will decide the terms of the couple’s divorce. Depending on the state, the court will either observe community property law or equitable distribution law. The first refers generally to a 50/50 division of assets; the latter prioritizes fairness over equality.4 The upside of a contested divorce, which is difficult and costs a lot of money, is that the final court order seals ongoing arrangements regarding alimony and child support. There are other advantages, too, depending on your situation; if your partner has always handled the money and you aren’t sure how much there is, for example, a court order ensures transparency and accountability in negotiations.5
Considering the Stakes
The route you choose to take will be determined by your circumstances. Every marriage is different; only you, your spouse, and your trusted advisors will be able to make that choice for you. Most people who have been through a divorce, and particularly a contested divorce, recommend seeking legal advice, particularly if the stakes are high for you. If you don’t have kids and many shared assets, it might make sense to agree outside of a courtroom. But if matters are complicated or you have a high net worth, for example, it might be a good idea to seek legal help. It’s still a good idea to download one of our agreements so you know how to navigate through the journey ahead.