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Legal disputes and their details can often be confusing for people who are not trained in the law. This is chief among the many reasons litigants are often advised to not only retain the services of a qualified attorney, but also someone with considerable experience and a track record in the specific area of the law at issue. In the case of a divorce, this means a capable and knowledgeable family law attorney.
The process of divorce subsumes a number of legal concepts which many people may recognize by their names, but which they would be hard-pressed to define accurately. This is one of the reasons it is so difficult for lay people to navigate civil court without counsel, as the true ramifications of each part of a case are unlikely to be well understood without first-hand experience.
One of these concepts is something called an “uncontested” divorce. To understand how such a case works, it is necessary to review exactly what is involved in litigating a civil matter generally and a divorce specifically.
Generally speaking, any civil case that is brought before a court of law involves some kind of dispute. The purpose of litigation in such a case is to present to the court arguments for or against the claims brought by a plaintiff. The plaintiff’s role is to petition the court for relief based on their assertion the defendant is responsible for some kind of injury or damage to the plaintiff. This is known as a “tort.”
The defendant’s role is to contest the plaintiff’s claim, and establish they were not responsible for whatever calamity the plaintiff is basing their suit on. The process of adjudicating the case then becomes a contest between the plaintiff and defendant to see which side makes the more credible argument and presents the best evidence or cites the most relevant case law. It is up to either the judge or a jury to decide. The overarching definition of this kind of legal framework is an “adversarial” system.
The contest between plaintiff and defendant is conducted before the court at a civil trial, which is more or less a set of rules under which each side can present their arguments and evidence. The purpose of a trial is to boil away all the irrelevancy in the matter until there is hopefully nothing left but facts. Upon those facts, it is believed, a jury or judge can make the best decision as to which side’s case is stronger, at which point judgment is entered and the two sides are required to abide by the court’s decision.
Litigation can be an extraordinarily prolonged and complex process, depending on the facts at issue and depending on the overall complexity of the case. In a divorce, for example, the scope and breadth of the family’s assets and the custody details of any minor children can take months or even years to settle.
The sweetest music to a judge’s ears is when the parties to a legal action like divorce announce it is “uncontested.” This means the process of litigation is not necessary, no evidence will be presented and there is no need for adjudication of a dispute. Which side’s arguments and evidence are stronger is no longer relevant. The reason is because in an uncontested divorce, for example, the petitioner and respondent already agree on the details of questions like division of assets and custody of minor children. All they require is the assent of a judge empowered to dissolve the marriage.
This is not to say spouses can do as they please. Even an uncontested divorce must adhere to the laws of the state where the marriage took place, and must also take place within any other laws governing the process of divorce. These are questions the judge must take care to enforce on his or her own, as occasionally spouses will attempt to craft their own unorthodox solution to a problem and miss the mark legally.
One example from elsewhere in the legal world similar to an uncontested divorce is something called a “pre-packaged” bankruptcy. This is a case where a petitioner and his or her creditors have already agreed to financial arrangements and simply need a court to make it official. In such cases, petitioners enter and emerge from bankruptcy all at once and are simply presented with a legally enforceable order matching the arrangements they had already made. Uncontested divorces can evolve in much the same way, where the parties prefer to avoid excessive legal expense in favor of perhaps compromising on their own interests.