Uncontested and Contested
There are basically two main pathways to getting a divorce: uncontested and contested.
An uncontested divorce means the parties are able to reach an agreement on all terms, including custody, visitation, child support, and division of assets and debts. Typically, one party will hire an attorney to draft the agreement which is sent to the opposing party. The opposing party can either choose to be unrepresented and sign the agreement, or they can consult with their own attorney to advise them. One attorney is not allowed to represent both parties. Both parties then sign the agreement setting out their agreed-upon terms, and the agreement is filed with the court. There is no case pending with the court until the agreement itself is filed. No one is “served” and no one appears in court or goes in front of a judge in an uncontested divorce. The agreement has to be on file for 30 days, then the judge will grant your divorce.
A contested divorce means one party files a complaint for divorce with the court and the opposing party is personally served by a sheriff or private process server with the complaint and a summons, which is a notice to respond. In almost every contested divorce case, the parties conduct discovery, which means both parties will have to answer questions and provide documents relevant to the divorce, such as financial information. Once discovery is complete, the divorce case can then be set for trial. In Mobile County, the average time frame that it takes a contested divorce to go to trial is 6 to 12 months.
Do you always have to go in front of a judge?
No! As explained above, an uncontested divorce is submitted on the agreement of the parties and you never have to go to court. Even if a case starts out as a contested case, the majority of cases still settle out of court, either by submitting a written agreement or by participating in mediation which then results in a written agreement being submitted. For more information about mediation, please see one of our mediation blog posts. As long as both parties are willing to be fair, it is almost always in your best interests to settle your case without going to trial because you can craft your own solution that is best suited to your family’s needs.