Family Lawyers in Canada Explain the Difference between a Contested and Uncontested Divorce

Unhappy couple getting a divorce

A divorce is a legal separation of spouses. When two people who are legally married decide that they no longer want a divorce, there are many factors to be considered. The process can be done either with mutual consent or by a judge’s ruling in contested and uncontested divorces. There are advantages and disadvantages to each type of process.

In 2022, over 2.78 million people filed for dissolution of marriage in Canada. This figure has significantly increased from the year before, when it reached just over one million filings for divorce. The average duration of a marriage in the country is no more than 14 years, and reports show that 80% of the divorces that take place in Canada are uncontested. This means that both parties agree to the divorce, and no issues need to be resolved in court.

Before you hire a family lawyer in Brampton, make sure you understand how contested and uncontested divorces work so you can make an informed choice about your case.

Here’s what you need to know about before beginning your separation proceedings:

Uncontested Divorce

An uncontested divorce involves a couple agreeing on the terms of their divorce through negotiation with their family lawyers or through direct discussion between the couple without legal representation. They also agree on how they will proceed to handle issues such as child custody, child support, property division, spousal support, property, assets, and so on. Once the agreement is reached between both parties, it can be submitted to the court for approval.

Holding divorce papers

The process is faster and less disruptive than going through the court system, but you will need the services of an experienced family law lawyer to ensure everything is handled properly. Some agreements can be complex and require the expertise of a professional to make sure all the terms of the agreement are complied with. However, once the court approves the agreement, you can proceed with filing the documents and getting your divorce finalized. There are certain criteria that must be met for a divorce to be considered uncontested by the court. Here are some of the most common requirements:

  • Both parties must agree on the division of property and assets and file the papers with the court together
  • Both parties must have been separated for at least one year and must have lived in separate residences during that time
  • There must be no hope of reconciling the marriage
  • If children are involved, both parties must agree to the terms of custody and be able to submit them to the courts

Contested Divorce

A contested divorce is one in which one or both parties disagree on one or more terms of the divorce and are willing to go to court to have the court decide the matter for them. This means they had a dispute over the division of assets, child custody, child support, alimony, and more. They have the option of going to court on their own or hiring a family lawyer to represent them during the court proceedings.

In most cases of a contested divorce, the legal proceedings can take several months or even years to complete depending on the issues involved and how stubborn both parties are. The couple first goes through a mediator to help them reach an agreement on the terms of the divorce and avoid going to court altogether. However, if they cannot come to an amicable resolution, they will have to go through the litigation process and have a judge decide the matter for them.

For a contested divorce in Canada, the legal process is very similar regardless of what province you live in. The first step is to hire a lawyer to represent you during the proceedings and provide legal advice throughout the process. You must then file a petition with the court, which requests that they grant you a divorce. The petition will outline grounds on which the divorce is being sought and identify certain details of the property division, child custody and support arrangements, and any other disputed issues. Both parties will have the opportunity to respond and set a date for a hearing.

During the hearing, family lawyers will present both parties’ arguments and any evidence. The judge will then decide the terms of the divorce. This decision will be final and binding, and both parties will be required to comply with it.

Couple arguing

Key Differences of Uncontested vs. Contested Divorce

Uncontested vs. contested divorce in Canada can result in significant differences for both parties. Getting a divorce is not only a painful experience but can also be financially costly. To get a better understanding, let’s take a look at some of the differences between an uncontested and a contested divorce.

The Complexity of Both Divorce Processes

A contested divorce is more complex and takes longer to resolve than an uncontested divorce because the issues that need to be resolved are more complicated. A contested divorce usually requires a court hearing to determine the division of property and custody issues. It requires more paperwork, legal costs, and emotional stress than an uncontested divorce, resulting in a longer process.

An uncontested divorce does not require multiple court appearances, and therefore the legal proceedings are usually less complicated and less expensive. In this type of divorce, the parties agree on all issues and sign an agreement or Memorandum of Understanding, which is submitted to the court for approval.

Legal Costs

A contested divorce is often more expensive and time-consuming than a negotiated divorce because it requires more time in court and additional legal fees and expenses for the parties. These expenses can include lawyer fees, court costs, costs of travel for expert witnesses and other professionals involved in the proceedings, and fees for child custody evaluators or other experts involved in dividing the property or assets.

In most cases, it will also be necessary to obtain spousal or child support if the spouse who has custody of the children cannot adequately support themselves. In addition, the court may award temporary spousal support to assist one party in meeting their financial obligations during the divorce process.

By contrast, an uncontested divorce is usually less costly because there are no court hearings, and sometimes there is no need to hire a lawyer either. The duration of the process is also shorter since the divorce does not have to be finalized by the court. In some cases, the spouses may agree to forego alimony altogether.

Uncontested divorce and a lawyer

Control

In an uncontested divorce, the parties have control over the outcome and make decisions together. They can negotiate the terms they want for the dissolution of their marriage rather than leaving these issues to a judge to decide. This process makes it easier for both parties to agree on a mutually acceptable arrangement for their separation so that they can move forward with their lives and begin rebuilding their family after the divorce.

In a contested divorce, the parties have no control over the outcome of the proceedings, and the outcome is determined entirely by the judge. The outcome is ultimately out of their hands, and they are left with little or no say in the outcome. So there is a likelihood of you being unhappy with the decisions regarding your property or your children’s custody in a contested divorce.

Emotional Impact on Both Parties

Separation is a difficult process as is for any couple going through a divorce, regardless of the circumstances. However, in an uncontested divorce, both parties can approach the process more amicably since they are not fighting over the issues or having to defend their actions before a judge. This allows them to move through the proceedings more quickly and with much less stress and anxiety than if they were going through a contested divorce.

Why You Should Consider an Uncontested Divorce

If you and your spouse agree to the terms of your divorce, you should consider an uncontested divorce because it will usually save you time, money, and stress compared to a contested divorce. It’s a secure option that benefits your children’s mental well-being, finances, and emotional health.

Having an experienced divorce lawyer on your side can make all the difference in obtaining a favourable settlement. A lawyer can help you negotiate and understand the complex legal system, protect your rights, and make sure that all of your questions and concerns are addressed throughout the divorce process.

Family lawyer with a couple

If you’re looking for a family lawyer in Brampton, we can help you! At Nanda & Associate Lawyers, we have experienced family lawyers who can help you with all complexities regarding your contested or uncontested divorce.

You can also hire our qualified wills and estate lawyers, immigration lawyers, civil litigation lawyers, and personal injury lawyers.

Book a consultation with us today!

 

 

Disclaimer: This article is only intended for educational purposes and shouldn’t be used as a substitute for legal advice.

 

 

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