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When is a Divorce Contested vs. Uncontested?
When people file for divorce in Arizona, not all cases end up in litigation. Some divorce petitions are uncontested, allowing the parties to get divorced without going through divorce a trial. An uncontested divorce is also much faster and less expensive than a contested divorce. In some instances, the parties can even finalize their divorce without ever stepping foot in a courtroom.
A Contested Divorce is when the divorcing parties can not agree on one or more issues in the dissolution of marriage. For example, deciding who gets the house in a divorce, or what happens to a retirement fund.
However, an uncontested divorce generally requires both parties to be fair, reasonable, and willing to compromise. As such, there are some situations in which litigation is unavoidable and the case must proceed as a contested divorce. If you are considering filing for divorce in Arizona, you should speak to an experienced family law attorney at Colburn Hintze Maletta about your situation to determine the best approach and strategy for you.
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Contested vs Uncontested Divorce in Arizona
What Does an Uncontested Divorce Mean?
An uncontested divorce means when divorcing spouses agree to all of the terms of the dissolution of their marriage. If you and your spouse agree on everything, you can work together to file the necessary documents with the court. Your divorce case can then be completed outside of the court without having to go to a divorce trial.
It is also possible for people in Arizona to divorce without a lawyer. However, this is not always a good idea, especially when the stakes are high (i.e. children are involved, you have substantial assets or debts).
What Does a Contested Divorce Mean?
In a contested divorce, the spouses disagree about one or more of the issues involved in the dissolution of their marriage. Unless the spouses can negotiate a settlement, a contested divorce case will be litigated in court before a judge in a divorce trial.
In some contested divorces, the couples can eventually come to an agreement through mediation or negotiation. If the issues in dispute are not settled, however, the case will proceed to trial on the remaining issues. The judge will then decide the outstanding issues after hearing testimony and evaluating evidence presented by both sides.
Contested vs Uncontested Divorce
Ultimately, uncontested divorces are faster and usually substantially less expensive than contested divorces. However, in some cases, it may not be a good idea for people to agree to settle. For example, if your marriage has had a history of domestic violence, or drug or alcohol addiction, or you suspect your spouse might be hiding assets, litigation might be necessary. It all depends on what the terms are being offered for settlement.
Even for an uncontested divorce, where you and the other party agree, an attorney consultation is still recommended to ensure your agreements are in your best interest.
Whether you are involved in a contested vs uncontested divorce, the Phoenix divorce lawyers at Colburn Hintze Maletta can help you evaluate the extent of your claims and rights under Arizona law. Even for an uncontested divorce, where you and the other party agree, an attorney consultation is still recommended to ensure your agreements are in your best interest.
In contested divorces, the attorneys at Colburn Hintze Maletta will help you identify the key issues and facts to maximize the potential for a successful outcome in settlement negotiations or trials.
If necessary and beneficial, we will engage outside experts and forensic accountants to help prove your case.
Reasons to Pursue a Contested Divorce
If you are the victim of domestic violence, the unequal power dynamic might not lend itself well to settlement negotiations, especially if you don’t have a strong advocate on your side to protect your interests. Additionally, if you share children with your estranged spouse who has a drug or alcohol addiction, agreeing to shared custody might not be in the best interests of your children.
Finally, if you are ending a high-net-worth marriage and believe your spouse may be hiding assets, or you just don’t know what is fair and reasonable in terms of property/debt distribution or financial support, a contested divorce might be your only option to ensure that you receive the best possible outcome.
People who are going through a divorce without these types of complicated issues might be happier with the results they receive when they can negotiate full settlement agreements.
When a couple can reach a full agreement, they will retain control over what happens at the end of their marriage instead of leaving the decisions up to a judge who does not know them.
Reaching a full agreement and moving forward with an uncontested divorce might also be much less expensive for both spouses and allow them to secure their divorce decree much sooner.
Disadvantages of Contested Divorces
Every divorce has its own unique circumstances, regardless of whether it is uncontested or contested. However, some of the disadvantages of contesting a divorce include the following:
- A judge will decide the issues rather than you and your spouse.
- You will likely have to attend multiple hearings in court.
- A contested divorce will take much longer.
- Contested divorces are generally more expensive because of protracted litigation.
Advantages of Uncontested Divorces
Uncontested divorces offer the following advantages:
- You and your estranged spouse have control over the final decisions at the end of your marriage.
- You might not have to appear in court.
- Uncontested divorces generally take much less time.
- Settling your divorce will likely be less expensive than litigation.
- If you do not have children and only have a modest estate, you might be able to handle an uncontested divorce without an attorney.
What is the Divorce Filing Process?
Before you can file for divorce in Arizona, you or your spouse must be a resident of the state or stationed in Arizona for a minimum of 90 days under ARS 25-312. The person who files for a divorce is the petitioner, and the other party is known as the respondent.
A common question is whether it matters who files first. The short answer is that in the vast majority of cases, it makes no difference.
Once the petition is filed, it must be served on the respondent with a summons to respond. The respondent will then be given time to file his or her response to the petition for dissolution.
If the parties agree on all outstanding issues, they can draft a settlement agreement that addresses how they will divide their assets and debts, how spousal support or child support will be handled, and how child custody will work. If the couple has children, they will need to submit a parenting plan to the court. Child custody issues are determined according to what is in the best interests of the children rather than in the interests of the adults involved.
Once a settlement agreement is filed, the court will review it to make sure that it is fair and reasonable. If the court determines that it is, the judge will issue a divorce decree, and the settlement agreement will become a part of the court’s orders.
If the couple disagrees, the respondent can file his or her response. The court will then set further proceedings and may order the parties to undergo mediation to try to reach an agreement. The divorce case will enter into the discovery phase. During this time, both sides will need to exchange the evidence they have with each other.
If an agreement is not reached on one or more issues, the case will eventually proceed to a divorce trial.
Default Divorce vs. Consent Decree
Once a divorce petition is filed and served on the respondent, he or she will have 20 days to file a response, or 30 days if he or she lives in a different state. If your spouse fails to respond to your petition, you can ask the court for a default divorce.
It is important to note that there is no automatic default for a divorce in Arizona. You have to apply to the Court for default, after which the other party will be afforded an additional 10 days to file a response. If the other party still does not respond, then the case will proceed by default.
A default proceeding means that your divorce will move forward without your spouse’s involvement. The court will likely grant a divorce decree and finalize your divorce under the terms of your petition.
If you agree to everything in your divorce, the court can instead issue a consent decree. If you share children, you will also be required to attend a parenting class once your petition is filed and before the decree will be issued, however.
What are Alternatives to Litigation?
Alternative dispute resolution methods are available to people who are going through divorces in Arizona. These include collaborative divorce and divorce mediation.
A collaborative divorce is a private, out-of-court process that might provide a way to get divorced even when you and your spouse initially do not agree on everything.
This type of process involves attorneys for each spouse and other professionals who can help to work together to resolve the outstanding issues. If an agreement is reached, it will be prepared and submitted to the court.
Divorce mediation involves meeting with a neutral third party called a mediator. The mediator is trained to facilitate agreements in contested matters. You and your spouse will meet with the mediator in separate rooms. The mediator will talk to each of you and go back and forth between you with each other’s concerns.
If an agreement is reached in mediation, an agreement will be prepared. Both you and your spouse will sign it and submit it to the court. Mediating your divorce can provide a way for you and your spouse to determine your divorce’s outcome rather than leaving it up to a judge.
Common Contested Issues in Arizona Divorce Cases
Some of the typical areas of divorce cases that lead to disputes include the following:
- What property is considered community (subject to an equitable division by the court) and what property is considered separate (belonging solely to one spouse)?;
- How the parties’ community property and debts will be allocated between them?
- Whether the community have an interest in a party’s sole and separate property?
- Whether one spouse qualifies for spousal maintenance, and if so, the amount and duration of support that should be awarded;
- The amount of child support that should be awarded.
- Which parent will have legal decision-making authority for the children;
- How parenting time will be divided between the parents;
Even if you initially believe that you and your spouse are too far apart on one or more issues to reach an agreement, an attorney at Colburn Hintze Maletta might still be able to negotiate with your spouse (or their attorney) to reach a settlement agreement that works for you.
Talk to a Divorce Lawyer at Colburn Hintze Maletta
If you are preparing to file a divorce petition, you should talk to an experienced divorce attorney at Colburn Hintze Maletta. We can help you assess your situation and put you in the best position to achieve a favorable outcome under the circumstances of your case.
Call us today to speak with our divorce attorneys during a free one-on-one consultation and create a winning strategy (602) 825-2500.
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“Very professional, very empathetic, and very responsive to all the issues.”
I had the opportunity to work with Darin during a very troublesome time in my life. As a family attorney, I found him to be very professional, very empathetic, and very responsive to all the issues I faced. I would recommend him to anyone without a second thought. Thank you, Darin!
Gary C. - Google Review
“Tim was absolutely amazing and worked diligently”
I had an incident and was given the catch-all charge. There wasn’t really anything I could do by myself to get out of it. Tim was absolutely amazing and worked diligently to ensure that I would have the best possible outcome from my case. Which he successfully achieved! As of right now, I am on the path to having my case fully dismissed. A couple of things that really helped me through this process was that Tim did an amazing job at answering my questions. He was available almost anytime and would respond promptly when he got my emails. He was also very approachable and comforting to be around while we had in person meetings and especially when I was at the court house. I would trust him and the company he works for with any other cases in the future, and as of right now, they will be my first choice if I need a lawyer in the future.
Dylan - AVVO Review
“Listens to every request that you make on a case”
I honestly just want to let it be known to any and everyone looking for an attorney on a case. Whether it be DUI, possession, or your every day to day traffic violations where you need representation attorney Tim Hintze is your man. You have to respect a man that listens to every request that you make on a case and he gets in there and gets it done. Tim has my respect as an attorney and being a well-rounded representer. From him being honest on the possibility and options for your case to him being easy to work and communicate with via over the phone or face to face Mr. Hintze is working it out.
Ben - AVVO Review
“I was found NOT GUILTY. Dave won the trial for me.”
Dave stayed with me while he pushed back and forth with Covid-19 and the delays with court. Once cited, the state basically decides that you’re guilty through the automatic suspension of your drivers license. Dave immediately took care of that problem and I never lost the privilege of driving. Dave took notes like crazy and was upfront about our uphill battle. I was also well aware that the plea deal that was given to us, was unacceptable and through Dave’s knowledge and experience I had put my trust in him to guide me to make the right decision on how to proceed. With Dave’s guidance I had decided that we needed to fight for something better than what the prosecutor was offering and Dave was 100 percent behind me on that decision. We knew the risks, be we also knew we had very little to lose based on the prosecutions stance. We decided to go to trial… Watching the prosecution and then watching Dave was night and day!! It was clear to the jury that the prosecution didn’t have their facts straight and were not addressing the facts that they could not address…There was a lot at stake for my personal life and my work life. I was found NOT GUILTY. Dave won the trial for me.
Gregory - AVVO Review
“David was relentless in his pursuit of my son’s innocence”
We retained David Maletta to represent our son after being cited for what can only be described as a momentary lapse of reason. David was extremely knowledgeable, was able to clearly communicate very complicated concepts, and was relentless in his pursuit of my son’s innocence. He had strong relationships with the prosecuting attorney and respect of the judge, which ultimately resulted in my son learning a really hard lesson with limited consequences (traffic school and writing an essay to the judge on the physics of driving 130MPH and what happens if that goes badly). I have already sent all of my friends with teenage and 20 year old kids his contact information for when they inevitably get that call. David completely exceeded all of our expectations and we could not recommend him any stronger. Thank you for everything.
Shawn H. - Google Review
“Responsive, sympathetic, professional, patient, and kind.”
On one of the worst and most surreal nights of my life (do not EVER get a DUI people!) I was lucky enough to find my way to Tim Hintze. Being in Phoenix for the Thanksgiving holiday from out of town, and after spending the evening with family, I ended up spending the night in jail.
Tim turned one of the worst experiences in my life into “it could have been so much worse!” Working with him from a different state, he covered the bases & paperwork, showed up for me in court, gave me numerous connections to muck my way through the system, and held my hand the whole way.
I cannot imagine how much worse this experience could have been, and thanks to Tim, I didn’t need to. He was responsive, sympathetic, professional, patient, and kind throughout the long process, drawn out by many months due to Covid.
Keep Tim’s number handy and in your contacts in the event you are ever in the sorry position to need a DUI lawyer!
Holly Weber - Google Review
“He fights for his clients like no one I have ever seen”
David Maletta is the absolute best trial attorney in the state of Arizona. He is a kind, emphatic, and extremely patient person. As an attorney, he is prepared, aggressive, and extremely skilled. He is not afraid to go to trial and fight for his clients, like other attorneys that just plead their clients to the original charges. When he is in trial, he flips a switch and goes from a nice guy to a killing machine. He fights for his clients like no one I have ever seen. Watching him do a cross-examination is exhilarating because he is so good it’s scary.
Patricia Bevins - Google Review
“Because of Darin I got my daughter back”
Before I hired Darin I went through a total of 3 different attorneys in two different states fighting a jurisdiction battle, when my daughter was taken to a different state. It was a very difficult decision to switch attorneys at one of the most difficult, time sensitive and important times in my case, but I’m very glad I did. Upon receiving my file from previous attorneys Darin came very familiar with my case quickly. Like other people have explained he took the time to lay everything out and explain how the process was going to proceed and what to expect and continued to do this as new issues arrived. He is also very quick at responding to emails and phone calls. My case was getting close to trial as told by my previous attorneys, I did not want to go to trial as I know this is very costly (most attorneys will convince you that you need to.) Darin knew my situation, fought for what was right and got the results I wanted while avoiding a costly trial. He is extremely knowledgeable in the Child Support Guidelines as well. Because of Darin I got my daughter back. I would highly recommend him and would hire again for any future issues. Thanks Darin!
Chris - AVVO Review
“This was the best possible outcome, great price, and fast.”
Darin helped me with a complex family law issue involving ownership of multiple businesses and other assets. He was able to structure a win-win that wasn’t only better than I thought was possible but that protected the business I had built. Above and beyond that, he did it with great customer service and character – which really matters to me. This was the best possible outcome, great price, and fast.
David R. - Google Review
“Nothing but good things to say about my experience.”
I have nothing but good things to say about my experience working with David Maletta. I was in a very high-stress situation facing a pending DUI charge. He doesn’t know this, but I actually interviewed 5 potential lawyers, and he was the most optimistic of all of them. He took over and handled everything, and now I don’t have to live with a DUI. Thank you so much for everything! Highly recommend them to anyone looking for legal help.
Lauren Koontz - Google Review
“I would give them more stars, but the option is not there”
Best divorce lawyers in Arizona, hands down. Timothy Hintz handled my divorce, and as a father, I have my son and our house. I would give them more stars, but the option is not there. His paralegal Jennifer Bone is extremely competent, and the whole team is very friendly. Took a big weight off, having them behind me.
Joseph A. - Google Review
“The calm in the middle of my storm…”
I recently consulted with Darin after my wife filed for divorce. He was referred to me by a friend whom I very much trust. Darin was the antithesis of the first two attorneys I consulted (who were matter-of-fact and had very little empathy about the fact that I was struggling emotionally with what was transpiring). From the first few minutes of speaking with Darin, it was obvious that he was very knowledgeable and skilled with divorce and family matters. While that was most important to me, the thing that made the difference was his calming, logical, and empathetic approach. He took the time to listen and empathize with me. He took the time to understand what I wanted to achieve through this process and laid out my options. After the consultation, I knew he would be my attorney if I had to pull the trigger. I, ultimately, didn’t have to engage Darin’s services due to a reconciliation with my wife. I hope I never have to go through that process again. However, if I do, I know beyond a shadow of a doubt who I will be hiring to represent me…Darin R. Colburn. Darin, thank you for caring and being more than an attorney.