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What's the difference between fault, no fault, contested, and uncontested divorce?


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4/22/2013
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There's a difference between fault, no fault, contested, and uncontested divorces.  One of the things that divorce attorneys tend to take for granted is that our clients understand the differences between these classifications.  If you're one of the ones who doesn't, don't worry: you're not alone.

Fault and no fault deals with the grounds for your divorce.  Contested and uncontested refer to whether you and your husband have settled the rights, obligations and responsibilities arising out of your marriage before you get in front of the judge.  If you file for a fault based divorce, it is always contested.  You may choose to litigate over only a few issues, but no one signs a separation agreement that allows them to get a divorce based on fault (like, for example, adultery)--that is something that must be proven in court to be awarded.

If you have a no-fault divorce, it can be contested or uncontested.  You can agree to file on no-fault grounds, even if there are fault grounds.  If there aren't fault grounds, you can still get divorced, but you'll be limited to a no fault.  If you're having a no-fault (but contested) divorce, you'll still go to court and make arguments in front of the judge for how your marital assets and liabilities should be divided and ultimately the judge will issue a ruling.  That ruling will be the final order of the court, and will govern how everything in your divorce (except for any of the issues that you maybe have agreed on together) will be settled.

In an uncontested no fault divorce, by the time you finally get in front of the judge, all of the important issues in your divorce will have been handled.  Since you agreed on both your grounds and the disposition of your marital property, all the judge does is review your final decree of divorce and sign it at the bottom.

Though it is not my intention to be scientific here, it is probably safe to say that close to 95% of divorces are ultimately uncontested, no fault divorces.  Why?  Well, in most cases, the parties prefer to settle things among themselves rather than risk having a judge do it for them.  After all, the judge doesn't know either of you or very much about your case, and it's definitely a gamble to lay it all on the line in front of him and hope you like what he says.  It also tends to cost a lot less to agree than to fight to the death.  Before you actually get to trial, your attorney will have to do a lot of preparation--and time costs money.  If you don't want to see bills filled with time spent at judicial settlement conferences and drafting proffers, it's probably in your best interest to reach an agreement sooner rather than later.



Category: Divorce

Katherine Wilcox Carter
Virginia Women's Divorce & Custody Attorney

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