The Difference Between Uncontested and Contested Divorce
I don’t think I understood what the word “litigation” meant until I was in law school. Seriously. It is one of the most misunderstood legal terms, right up there with “forensic” (which means for the court) and “tort” (a civil wrong).
I was the first in my family to earn a “professional” (meaning graduate-level) degree. My mom and dad were the first in their family to earn undergraduate degrees. I did not grow up among lawyers, investors, or wealth managers and therefore did not begin to learn the vernacular of these professions until I decided to go to law school.
I am still learning to this day and will continue to be in process until I have fallen down and can’t get up. That’s why they call it the practice of law, as the adage goes.
Trust me, a lifetime is not enough to learn everything that can be learned about the practice of law. I assume that’s the case for every profession.
Latin was the original language of lawyers and doctors.
From this ancient romance language, we have iconic legal maxims such as:
- Bona Fide (in good faith)
- Quid Pro Quo (this for that, or tit for tat)
- Res Ipsa Loquitur (the thing speaks for itself)
- Ex Parte (just like it sounds, without the other party present)
- Habeas Corpus (bring me the body)
- Pro Se (on one’s own behalf)
- Nunc Pro Tunc (now for then)
- Mens Rea (a man’s reasoning or intention)
The word “litigation” is derived from the Latin verb litigare, meaning “a lawsuit,” and agrere, meaning “to carry on.” But what does litigation mean? According to the Merriam-Webster dictionary,
“Litigation is a noun that means the process of contesting and resolving disputes in the legal system.”
In other words, if your legal case is “litigated,” it means it is being resolved in the court system with intervention from a judge.
By contrast, it is the opposite of a hand-shake deal, a gentlemen’s agreement, a kitchen table negotiation, or reaching a settlement outside of court. Litigation is for people who can’t resolve their disputes on their own.
Many assume litigation means taking someone to court, and while this is technically correct, most cases never see the inside of a courtroom.
Let’s start with what is not litigation in the context of a divorce case.
The process of divorce in Florida starts when you or your spouse file a petition for dissolution of marriage with the clerk of court in the county where you last lived together as a married couple. If you have children, the petition is filed in the county where your children permanently live (this is generally the same place, but not always).
The petition asks the court (meaning the judge assigned to your case) to dissolve the bonds of your marriage and restore you to being single and unmarried. Florida has been a no-fault divorce state since approximately 1971.
No-fault means you don’t have to prove any grounds for divorce except to state generally the marriage is irretrievably broken and there’s nothing that can fix it. There is no fighting a spouse’s request to be divorced: it only takes one person in the marriage to break the marriage.
The judge assigned to your case is not interested in what got you and your spouse to this fork in the road. The judge in your case also does not monitor or intervene in your divorce process unless he or she is asked to do so. But more on that later.
Your Divorce Case is Uncontested if You and Your Spouse Are on the Same Page About Your Divorce:
Aside from stating the marriage is irretrievably broken and asking for it to be dissolved, a divorcing spouse can also ask for various forms of relief as they apply to your marital situation. In Florida, these generally are: (1) a distribution of your marital assets and debts; (2) alimony/spousal support; (3) custody/time-sharing of minor children of the marriage; and (4) child support.
If you and your spouse are generally on the same page about the major aspects of your case, you do not need to ask the judge assigned to your case to intervene. Thus, if this is your situation, your divorce case is uncontested.
It is not “litigated” because you do not need to ask the judge to step in and make decisions for you and your spouse about the major components of your financial and/or family life.
Getting the details of those major components in writing takes some effort to nail down, which is why couples with property and/or children from the marriage routinely need professional legal assistance for their divorce.
Uncontested Divorces are Not One Size Fits All!
You Have Choices…
Let’s talk about the different options you have for an uncontested divorce. There are generally four types of uncontested divorce: (1) negotiated divorce; (2) collaborative divorce; (3) cooperative divorce; and (4) mediated divorce.
A negotiated divorce occurs when your and your spouse’s divorce attorney meet and confer on the points of contention in your case. With the advocacy of your attorneys and the final approval of you and your spouse, each party to the divorce makes concessions on terms where appropriate, which may result in a settlement and swift conclusion of your case.
This is one of the least expensive divorce options because there are no third-party mediators or other professionals utilized in the process. A negotiated divorce is ideal when you and your spouse are, for the most part, on the same page about the terms of your divorce and just need assistance getting the details set down in writing.
In a collaborative divorce, you and your spouse have a divorce team. The team is comprised of you, your spouse, and four divorce professionals hired with the goal of a full settlement. Collaborative divorces are entirely confidential and require no court appearances.
You and your spouse each have collaboratively trained divorce attorneys to represent you.
Two neutral professionals – a financial neutral and mental health neutral, are brought on board to complete the team. Collaborative divorce is designed to support the divorcing couple in all areas: legal, financial, and psychological/emotional.
If you and your spouse have sensitive issues involved in parting ways, such as:
- differing views on how to raise your children;
- extra-marital affairs, substance abuse, or mental health challenges;
- complex or high-net-worth marital assets and/or debts; or
- polarized views on their division,
collaborative divorce can be a highly effective, modern alternative that can keep your differences out of court and in the hands of specifically trained divorce professionals.
Here is more information on collaborative divorce:
Cooperative divorce is similar to a collaborative divorce, except only one neutral professional is hired to assist in the divorce process instead of two or more. Both you and your spouse are represented by collaboratively trained divorce attorneys, and typically only a mental health professional or only a financial professional is hired to complete the team.
A cooperative divorce can also be conducted by an attorney-mediator upon whom you and your spouse both agree, who works alongside the neutral professional to get your case fully resolved.
Cooperative divorce is a powerful method when your major points of dispute fall in one area. It is also less costly than a collaborative divorce and can be less costly than a mediated divorce, especially if you and your spouse agree on an attorney-mediator to work with the professional neutral.
Here’s an example of cases well-suited to cooperative divorce: If you do not have children, or you have children and you and your spouse completely agree on how they should be raised post-divorce, then you probably do not need a neutral mental health professional for assistance with negotiating a parenting plan.
But let’s say you do have complex or high net worth marital assets, multiple income streams, and/or debts to be divided. In such a case, a neutral financial professional is hired to assist in resolving a fair distribution of marital assets and liabilities.
On the other hand, if your marital assets and debts are straightforward or few, but you are in complete opposition about how your children should be raised, then a neutral mental health professional is brought in to assist you and your spouse in developing a parenting plan which best supports your family.
A mental health neutral is also invaluable where highly charged emotions are involved, such as cheating, substance abuse, or personality disorders in one or both spouses.
Now let’s talk about mediated divorce. There are two types of mediated divorce: (1) represented mediation; and (2) unrepresented mediation, also known as a pro se (without counsel) mediation.
In a represented mediation, you and your spouse are individually represented by divorce attorneys (who ideally are both collaboratively trained), and a third-party family law mediator is hired to negotiate the sticking points in your divorce.
This type of mediation is best when you and your spouse are at loggerheads over the details of your divorce, but given insight and information on how divorce laws apply to these details, you and your spouse are educated about the other side of the coin. Thus, informed concessions can be made regarding your opposing positions, paving the way to a full settlement of your case.
In an unrepresented mediation, neither you nor your spouse is represented by legal counsel. You both agree to hire a family law mediator who assists in and guides the negotiations with the goal of a full settlement.
An unrepresented mediation is also one of the least expensive divorce options. It is important to keep in mind that your mediator is neutral and cannot give either spouse legal advice about your rights in a divorce.
The family mediator can inform you of considerations a judge may have on a particular issue by applying Florida divorce laws. This method of mediation is ideal for a divorcing couple who, for example:
- Have been married less than six years.
- Have no children.
- Have few marital assets and debts.
- Essentially agree on the major components of their divorce and just need help hammering out the details and getting them in writing.
Here is more information on mediated divorce:
If your divorce case reaches a full settlement in an uncontested divorce process, you and your spouse do not have to appear at court at all, not even for the final hearing. Thanks to covid (there were some silver linings…), court administrators put into place online final hearing procedures due to the social distancing requirements of 2020 – 2022. Those online procedures have remained in place post-pandemic.
Moreover, this is your reward from the family law judges, who give great deference to a divorcing couple’s ability to act like civilized adults and reach their own conclusions about the terms of their divorce (which spares the judges’ brainpower and limited time to do that for you).
Little Known Fact – All Uncontested Divorce Cases Can be Handled Virtually!
Did you assume getting divorced would require you to spend a lot of time at the courthouse and in your lawyer’s office? If you did, you’re in for a surprise. Modern divorces have come a long way, largely due to how legal proceedings were handled during the pandemic’s social distancing requirements.
If your case is uncontested and you and your spouse choose negotiated, collaborative, cooperative, or mediated divorce, your case can be handled virtually, from start to finish, without setting foot into a courtroom or law office.
For over two years, during the pandemic handling divorce cases for my clients one hundred percent remotely, we at Morgan Divorce Law have taken that time to establish and perfect the virtual divorce online so your divorce is seamless and straightforward. It also takes about half the time and half the money.
For detailed information on the virtual divorce online process in Florida, here are some references:
A Litigated Divorce Means a Contested Divorce:
If you are completely at odds with your spouse on important matters such as the custody of your children; who should remain in the marital home; whether and how much alimony should be paid; or how marital assets and debts should be divided, then your case falls in the category of contested, also known as litigated, divorce.
At this point in your reading, you have probably figured out the term “litigation” is just a fancy word for contested!
When you have diametrically opposed disputes in your case that are impossible to resolve with your spouse, the only option remaining is for your attorney to motion the court for a hearing so the judge in your case can resolve your dispute.
This motion is put into writing, filed through the Florida statewide e-portal filing system, then set for hearing at a time when you, your attorney, your spouse, your spouse’s attorney, and the judge are all available. Not an easy task.
The Discovery Phase – Florida’s Mandatory Disclosure Law:
In a litigated divorce, there is what is called the “discovery phase” of the case. In this phase, you and your spouse, through your attorneys, are required to submit and exchange financial affidavits, years of bank statements and investment account statements, statements of debt accounts, tax returns, deeds, leases, and any other documents reflecting your income, your assets, and your liabilities.
This is typically a laborious and costly process because the attorneys have to review the financial records of both you and your spouse to determine if they are accurate and complete.
Within this process, disputes often arise regarding the withholding of financial records. In such instances, a motion to compel mandatory disclosure is filed, and the judge in your case will rule on the merits of the motion at a hearing.
Contrast this with an uncontested divorce, where the parties are only required to exchange financial affidavits and are allowed to waive the exchange of all other financial records for mandatory disclosure.
Litigation of Alimony, Child Support, Time-Sharing, and Attorney’s Fees:
As you can imagine, the issue of alimony is frequently litigated. If it is in dispute in your case, you will have to prove at a contested hearing in court you have a need for such financial support or whether you have the ability to pay your spouse for such support.
Child support is ordered using a fixed algorithm based on the income of both co-parents and some other cost-related factors, such as who is paying for health insurance and how many overnights each co-parent has with the children. The issue of child support is often litigated because of inaccurate reporting of income by co-parents.
The time-sharing schedule with the children is also a frequently litigated topic due to co-parents asking for majority time-sharing in order to lessen or increase the amount of child support to be paid.
The same applies to attorney’s fees and court costs. A request for attorney’s fees and court costs is often litigated when one spouse is in a superior financial position to the other. Again, you can find yourself in a contested hearing to prove you have a need for attorney’s fees or whether you have the ability to pay for your spouse for such relief.
All three issues are often litigated twice in one case – once at the beginning of the case (at temporary relief hearings) and again at a final trial on all issues.
Other disputes frequently arise, such as:
- who will remain in the marital home pending the divorce;
- whether the house should be sold;
- whether marital assets have been unlawfully dissipated; and
- whether a spouse is voluntarily unemployed and therefore have income imputed to him or her.
Court hearings (also known as motions’ practice) and trials are expensive – you are paying for your attorney’s time for the discovery phase, for the preparation for the court hearing, as well as for real-time in court at the hearing or trial.
There are also fees for the attorney’s legal assistants, who helps the attorney draft the motions’ documents, files them into the Florida e-portal filing system, and coordinates setting them for hearing with opposing counsel and the judge’s office.
It is often not understood by a person getting divorced for the first time how long it takes to obtain a single hearing on the judge’s calendar. Unless the issue is an emergency (which means literally someone is in immediate physical danger that could result in death), it is not unusual to wait months before the judge can hear a single dispute at a hearing.
Even In Litigation, Mediation is Required Before You Can Take Your Dispute to Court:
It is important to know in Florida you cannot take a disputed issue to court for resolution until you and your spouse first attempt to resolve your dispute in a court-ordered mediation conference.
The majority of divorce cases in Florida are concluded at mediation. If your dispute is not resolved in mediation, an impasse is declared.
Then and only then are you allowed to go before the judge for your dispute to be heard by him or her.
A case can start out contested and be litigated, but if it settles at mediation, it is no longer considered a litigation case and becomes uncontested. Starting a case out as contested can also be a matter of overall strategy.
I have experienced many cases starting off hotly contested then converting to an uncontested process mid-divorce.
This can happen for many reasons. But more often than not, it’s because one or both spouses simply did not comprehend the financial expense and emotional toll litigated divorces cause.
A seasoned family law attorney can often convert a litigated divorce into an uncontested divorce if they have good negotiating skills and a high success rate in mediations. But if your divorce turns into a litigated divorce after a failed attempt at an uncontested process or a court-ordered mediation, our clients appreciate Morgan Divorce Law can handle either event.
Cases can be handled amicably or aggressively, depending on what your case requires. At Morgan Divorce Law, your case challenges and desired goals will be carefully considered.
We will sit down with you and decide the best divorce process for your unique circumstances.
If you have questions about the types of divorce available to you, please reach out to our team here at Morgan Divorce Law, and let’s set up a no-obligation time to talk. We have headquarters in Orlando and Palm Beach and represent residents in central and south Florida. For an uncontested or virtual divorce, we can represent you in any county in Florida.
Contact Morgan Divorce Law Firm, Orlando, Central Florida & Palm Beach Divorce and Family Law Attorneys
Andrea is a native Floridian born and raised in Winter Park, Florida. Throughout her career as a divorce attorney, she has handled divorce cases in every county in Central and South Florida. She has recently expanded her firm from Central Florida to also serve Palm Beach County and West Palm Beach. She is a respected divorce lawyer, coach, consultant, author, mediator, and advocate of social change within the Florida court system.
Andrea earned her Juris Doctorate degree from Loyola University College of Law, New Orleans and graduated from the University of Central Florida in Orlando with a Bachelor of Arts degree in Legal Studies.
She has been certified as a family mediator by the Florida Supreme Court, is a trained collaborative family law attorney, and is a member of the Collaborative Family Law Group of Central Florida; the Collaborative Family Law Professionals of South Florida; and the Florida Academy of Collaborative Professionals.
With over two decades as a trial attorney, Andrea has fine-tuned her understanding of the unique dynamics and challenges families face during restructure. She handles contested family law cases that are litigated in court, but also vigorously encourages uncontested divorce methods as the premier route for the restructuring of families.
Andrea advocates divorce mediation, cooperative divorce, and collaborative divorce as the more effective, more respectful, more cost-effective, and more healthful means to divorce, especially when there are children involved.