Arizona Contested vs. Uncontested Divorce
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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.
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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