This Is What Uncontested Divorce And Contested Divorce Really Mean In NC!

Navigating the intricacies of divorce can be a daunting task, especially when faced with terms like “uncontested” and “contested.” It’s important to understand what these terms actually mean and the implications of both paths before making a decision on how to proceed.

First, when we refer to “divorce,” we’re talking about a legal term known as “absolute divorce,” which refers to the divorce itself—not all of the issues that people traditionally (or in other states) associate with the process, such as property division, spousal support, child support, custody, and so on.

North Carolina is unique in that it doesn’t hold your divorce hostage. You can get divorced without having any of your issues worked out as long as the waiting period of 366 days has passed. On the flip side, you can have all of your problems resolved, assets divided, custody sorted, etc., and you will still have to wait a year and a day to get divorced.

In order to get an absolute divorce in North Carolina:

  • You and your spouse (who were legally married) have to have been separated for a year and a day,
  • You have not resumed the marital relationship,
  • It was the intent of one of you to be separated permanently,
  • And, you are eligible to file for divorce according to North Carolina law.

Because “divorce” is the easiest part of the process in North Carolina, the only way to “contest” an absolute divorce is to prove or argue that one of those grounds for divorce does not apply. For example, if you were not actually separated for those 366 days, or you were never legally married, that would be grounds to contest, but this doesn’t happen very often.

However, the terms “uncontested divorce” and “contested divorce” are frequently used incorrectly. Oftentimes, people misuse these terms to describe how amicable or contentious things will be when resolving issues with their soon-to-be ex. We find that when many people call us talking about contesting a divorce, what they really mean is that they have an issue with the way the “stuff” is being divided, like assets or custody. They are not referring to the actual divorce itself. North Carolina makes it confusing!

For most people who are not familiar with North Carolina laws and terminology, it’s assumed that an “uncontested” divorce refers to the concept of an amicable divorce, a friendly divorce. A “contested” divorce is then assumed to refer to a divorce where one spouse doesn’t like the settlement the other spouse has proposed or when spouses can’t agree on how the children or stuff should be handled for various reasons.

When it comes down to it, either you and your spouse can resolve it outside the court, or you can’t! So, what do both of those scenarios look like practically?

What Does An Amicable (“Uncontested”) Divorce Mean?

If spouses are in agreement, you never have to go to the courthouse, and a judge never has to approve your settlement – you might have a written private agreement, which is typically known as a Separation Agreement and Property Settlement. In this case, you and your spouse work together to settle the issues that go along with your divorce, such as:

  • Property division,
  • Spousal support,
  • Custody,
  • Child support,
  • And attorney’s fees.

One unique aspect of an “uncontested divorce” in North Carolina is that if you resolve your issues with a Separation Agreement and Property Settlement, you don’t ever have to go to a courthouse! When two people are in agreement, you can handle all these divorce matters (not the actual absolute divorce) without the approval of a judge. However, there are reasons some might choose a consent order signed by the court over a private agreement, like for the purposes of modification or enforcement.

Mediation is a great tool if you need a little help reaching an agreement. During this process, you and your spouse work with your respective attorneys and a mediator who can help you develop and refine your agreement. Your private agreement can also be negotiated by your attorneys. Both tactics are an excellent way to save money as you skip out on lengthy court battles and the fees associated with them, not to mention that mediation and negotiation are far less stressful than a contested agreement. And, we find that people generally follow the agreements they make themselves as opposed to the ones they feel a court forced upon them so you are likely to have less enforcement and contempt issues later.

It’s important to remember that even if you can work out these issues immediately, you still have to wait a year and a day for the divorce to be legal. Talk to your state representatives if you don’t like this rule. It’s the law, and we can’t skirt it.

What Does A Divorce That Can’t Be Settled Amicably Outside Of Court (“Contested”) Look Like?

Like marriage, no two divorces are the same, so an uncontested settlement isn’t going to be a viable option for every couple. It can be challenging to agree on how to share assets and debts. There are also some assets that cannot be divided, like a home, which one party may not be open to selling. Maybe the idea of not being with your kids every day is keeping you from sorting out custody. Or you could be married to someone with a personality disorder or a knack for drama who is intent on making the process as difficult as possible.

In this case, a “contested” divorce may be your best option for a resolution. You and your attorney will prepare from the start for many a court battle by collecting and requesting documents and evidence. Changes of settlement are slim, so your attorney will take a more assertive approach rather than a settlement-minded one.

Again, we want to point out that when we say “contested divorce,” we are not referring to your actual divorce; we are referring to the other aspects, like who is paying debt, who is taking care of the kids, and who is living in the house.

While contested divorce can provide you with closure when you can’t agree on all aspects of your split with your spouse, it can also be emotionally taxing, expensive, and time-consuming. Contrary to an uncontested agreement, it also takes the decision-making power out of your hands.

Triangle Smart Divorce Will Help You Divorce With Confidence

Whether you know it’s time to part ways with your spouse and have an idea of the path you want to choose or are still unsure whether an “uncontested” or “contested divorce” is right for you, Triangle Smart Divorce is here to help you move forward. We will help you envision and understand what life could look like after divorce, providing legal guidance and support every step of the way. Our experienced family law attorneys have extensive knowledge regarding North Carolina’s unique divorce laws, so they can supply you with peace of mind and confidence at every turn and crossroad. Allow us to help you close this chapter of life and begin a new and better one. Call Triangle Smart Divorce now to request a consultation and discover your options.