What is the difference between uncontested divorce and contested divorce in Virginia?

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In Virginia, when we talk about an “uncontested” divorce, we are simply talking about a divorce where there are no unresolved issues that need to be addressed by the court. Generally speaking, this can be because either 1) the parties to the divorce have already resolve the issues in the divorce with a signed, written agreement, or 2) there is no written agreement, but neither party is asking the court to address any issues like support, grounds for divorce, child custody or visitation, or equitable distribution of assets. A contested divorce is where there is at least one issues where the parties do not agree, and typically seek intervention from the court to help the resolve it.

Filing for Divorce when you have an Agreement in Place

If you believe your divorce is going to be contested because you have an “agreement” with your spouse, it is important to understand that the agreement must be in writing and signed by both parties. Many people will tell their attorney that “we agree on everything” without actually having a written agreement and without having considered several important details. These ‘agreements” can later breakdown once the parties start talking about the fine details of what they intend to agree upon. The mantra to keep in mind here is: its not an agreement until its in writing and signed.

Once you do have a signed, written agreement, the actual process of becoming divorced is relatively simple. It essentially involves filing the appropriate paperwork with the court asking for the divorce to be finalized and the terms of the agreement to become part of the final divorce order.

Filing for Divorce with No Agreement

As noted above, there is no requirement that the parties have an agreement in an uncontested divorce. It is very much possible to obtain an uncontested divorce without one.

When filing for an uncontested divorce without an agreement, the person filing is simply asking the court for a no-fault divorce – and specifically not asking the court to address support, custody/visitation, division of assets, or grounds. Once the divorce is filed, it can proceed almost exactly as filing with an agreement – finalizing the divorce is simply a matter of filing the appropriate paperwork and waiting for a judge to sign your divorce decree.

It is important to realize, however, that without a written agreement resolving all issues from the marriage – it is possible for the other spouse to derail the “uncontested” aspect of the divorce and turn the proceedings into a contested divorce. The process would work out this way:

1. The filing spouse files for an uncontested divorce, asking the court only to grant a no-fault divorce – and not seeking to have the court address any other issues.

2. In many cases (with some exceptions), the other spouse would be formally notified of the pending legal case by being “served” with copies of the paperwork that have been filed with the court.

3. In many cases, if the spouse who is served does nothing (or he/she can sign off on the divorce paperwork) – the uncontested divorce moves forward.

4. However, at this stage of the proceeding, the spouse being served with the uncontested divorce can file an Answer or a Counter Complaint for Divorce (or both). The spouse that files the Answer or the Counter Complaint can then ask the court to address any issues of support, custody/visitation, or equitable distribution that he or she wants the court to address. If this happens, the case now becomes a contested case and will likely have to be resolve by trial with a judge or settlement with a written settlement agreement.