The terms “no-fault divorce”, “uncontested divorce”, and “contested divorce” get tossed about any time divorce is discussed. It can be difficult to determine which applies to your specific scenario, and what the differences between the various types of divorce are.
Any kind of divorce can be contested by either the person who filed it (the plaintiff) or the person against whom it is filed (the defendant). Contesting means doing what is required to stop a divorce. That can be by refusing to cooperate or actually filing something in court opposing the granting of the divorce, with or without hiring a lawyer. A contest may be made because one party simply does not want to be divorced for a reason, many reasons or no reason at all. A contest may be made because one party wants money, property or something else from the other party in exchange for allowing the divorce to be granted.
Expect a contested divorce to take a long time and cost thousands of dollars (frequently running into the five-figure mark after legal fees and court costs). There can be embarrassing and lengthy public testimony in open court by the parties themselves, friends, relatives, experts, private investigators and even children. Many lawyers press their clients to contest to the fullest, whether or not it can be justified. Many clients adopt the attitude that they have been grievously wronged by their spouses and will fight endlessly out of revenge or hate (and these are clients from whom lawyers can make huge fees).
The opposite of a contested divorce is an uncontested divorce. In an uncontested divorce, neither party will do anything to stop the divorce and will cooperate to help it become final. There may be no reason to contest a divorce if both parties want to be divorced and both are happy with the way everything – if there is anything – has already been divided. They can divide things on their own or with the help of lawyers and then proceed with an uncontested divorce. The parties may have to do some negotiating to come to a mutual decision on the division of things. The support and/or custody of children may be resolved or even whether or not alimony will be paid and how much and for how long. As with anything else in life, the person who wants the divorce more may have to give up more to get an uncontested (and thus simple and inexpensive) divorce. In Pennsylvania, the parties are not required to mention how or what was settled in the divorce paperwork. Indeed, if they have been apart for a while, there may be nothing to settle at all. Even if they separated recently, if each party is satisfied with what each has, a simple, inexpensive, uncontested divorce will work fine.
Some clients tell me that they want to file an uncontested divorce, thinking they can file a divorce which CANNOT BE contested. In Pennsylvania (and in all other states, I have reason to believe), there is no divorce that cannot be contested. ANY divorce can be contested, with or without a good reason or any reason. Many defendants contest (or refuse to cooperate) only to give the other party a hard time.
It is, unfortunately, true that stories have been put forth on TV, radio, the internet, and other sources that, after the parties have been apart for a specified period of time, a divorce cannot be contested. That is NOT the law. Think about it. What if a man tells his lawyer that his wife left him 10 years ago but will not give him a divorce when the truth is that he just left his wife earlier that same day? Just because that guy signs and has his lawyer file an affidavit saying that he has been separated 10 years, do you really think that the wife cannot contest? Even if his 10 year separation story is true, under the law the divorce is still not automatic.
What I need to discuss at this point is the difference between no-fault and fault divorces. Until June of 1980, Pennsylvania had only fault divorce. As I said above, ANY divorce can be contested, fault or no-fault. In a fault divorce, the plaintiff had to claim some really bad behavior by the defendant. That bad behavior was the “grounds” for the fault divorce. Such bad behavior could be adultery, physical abuse or indignities (which means a “deep estrangement and a settled hatred”, pretty heavy words if one thinks about it), for example. The divorce would be filed, the defendant served a copy and a hearing scheduled wherein the plaintiff assumed the defendant would not show up. If the defendant did not show, the plaintiff would testify why a divorce was deserved. This would take only a few minutes. The testimony and documents would be sent to a judge who would grant the divorce some weeks later when the judge got to that case. This was an UNcontested, fault divorce and it seems simple enough; but, because a hearing is required, the court costs are high as are the legal fees, two to three thousand dollars is a reasonable expectation.
Now, had the defendant decided to show up, with or without a lawyer, and announced that the case was contested, a new, lengthy and very, very expensive divorce trial would have to be scheduled. The result of the trial could not by any means be guaranteed; moreover, if the plaintiff won, the defendant could appeal and that could stretch it out another two years. That is a CONTESTED fault divorce.
Now, NO-fault divorce, which can be either contested or uncontested… no matter how long the separation. If the couple is not living apart or has not been apart sufficiently long, the divorce is filed, the defendant properly notified and 90 days must then be counted off. After the 90th day, both parties must sign the required affidavit stating that each of them consents (agrees) to the divorce. Without a hearing, the documents are assembled and sent to the judge who, in due course, simply grants the divorce. There was no testimony, no need to hang out dirty laundry, no need to find fault (hence, no-fault) with the other party, just tell the court, in writing, that the marriage was broken and could not be saved. But, if either party refuses to sign the consent document, the divorce cannot be granted and you can consider that a contested no-fault divorce.
But what if the parties, in a no-fault divorce, have been separated “long enough”? One year is enough if the separation began on or after December 5th, 2016, two years if it began before that date. Things are different in such a no-fault divorce. The divorce is filed, the defendant properly notified and then the defendant is mailed two documents. One states that a divorce has been filed and you have 20 days to act to contest it. The other is an affidavit which the defendant may sign, date and send to the court to contest the divorce and stop it dead in its tracks. That’s right. The plaintiff must send the defendant a document that can be filed to contest the divorce. If the 20 days pass and the defendant has not filed that affidavit (or otherwise filed a contest), a request can be sent to the judge to grant the divorce and, in such case, the defendant will have signed nothing. If the defendant does file that affidavit, a trial must be scheduled to prove, at least, that the length of separation is correct and, if necessary, to fairly divide the assets accumulated during the marriage…a process just a little less nasty than a contested fault divorce trial but every bit as expensive. Take note that in a very low-cost no-fault divorce, both parties must sign regardless of the length of separation.
So, there you have it. Fault divorce, contested or uncontested, and no-fault divorce, likewise contested or uncontested. If you have decided to end your marriage, the most sensible thing to do is to treat it like a business even though it may be very emotional and even angry and file a simple, uncontested, no-fault divorce. Letting emotions and anger take over will cause long delays and cost as much as every cent you have… and then some.