Divorce by mutual consent vs. contentious divorce, key differences

Divorce is almost always an emotionally difficult process. Especially if children are involved. However, it can be quick and easy or lengthy and traumatic. It depends primarily on whether or not both spouses agree to go their separate ways.

This is the reason why we have thought it appropriate here to analyse the differences between an uncontested divorce and a contentious divorce. We are convinced that, in the end, it will become clear that it is always better if both parties show willingness.

Main differences between divorce by mutual consent and contentious divorce

First of all, it should be clarified that an uncontested divorce is one that is carried out with the agreement of both spouses. On the other hand, when we talk about a contentious divorce, we are referring to a situation in which one of the spouses does not wish to break the marriage bond or does not agree with the regulatory agreement proposed by the other party, which is why a judge will have to set the conditions.

In any case, it should be remembered that the mere will to divorce of one of the parties is sufficient for the process to be carried out and finalised. However, when a contentious procedure is initiated, it will take much longer.

Duration

This is the first factor to take into account. When it is done by mutual agreement, the divorce process does not usually take more than two or three months. If, on the other hand, it can take several years to complete if the divorce is legalised in court. This is especially true if one of the spouses is determined to appeal the judge's decisions to the very end. This also depends on how busy the court is.

Price

Obviously, the protraction of the proceedings has important economic consequences. Divorce or separation by mutual consent is usually quite inexpensive, as both spouses can even share a lawyer. He or she will be responsible for drawing up the regulatory agreement that determines the conditions of the couple's situation in the future.

On the other hand, when the contentious procedure is chosen, each of the spouses has to hire their own lawyer. Moreover, it is also necessary to pay the fees of a solicitor, psychological reports and other evidence.

It should be remembered at this point that there is no such thing as an amicable separation without a lawyer. In order for the definitive break-up of the relationship to take place, it is essential to have this legal figure, even if it is shared by both parties. It will also be necessary to have recourse to a notary to attest to the couple's decision.

Documentation

Contentious divorce proceedings require the spouses to gather a large number of documents. This is the case, for example, of:

• Loans taken out by the couple.
• Pay slips showing the income of each spouse.
• Deeds of acquired property or rental contracts.
• Employment contracts.
• Invoices for services required by the children.
• Etc.

Obviously, gathering all this documentation and submitting it to the court is a time-consuming process. Moreover, its subsequent analysis will also delay the trial preparation process. Negative aspects that do not occur when there is a mutual agreement.

Judge or notary

We have all heard of "express divorces". This term refers to the speed with which the process of dissolution of marriage is carried out, which is due to the fact that there is no need to go to court. A shared lawyer and a notary are sufficient to carry it out.

However, express divorces, which can only take place by mutual agreement, require the fulfilment of a series of requirements. The most important of these is that the couple have no children in common. If they do have children, even if there is an agreement between the spouses, it is essential that they go through the courts. After all, the figure of the judge is necessary to preserve the rights of the minors in their care.

The smartest decision

Beyond everything we have just said, the smartest decision in the vast majority of cases is to reach an agreement. In fact, our experience tells us that the degree of satisfaction with the terms of the settlement agreement is always much higher when it is reached than when litigation is resorted to.
After all, these conditions will have been established after negotiation between the couple. This will determine the visiting arrangements, the custody and guardianship of the children, the use of the family home and, in general, any other aspect governing the divorce. It is not the same for the regulatory agreement to be set by the spouses themselves as it is for a "stranger" such as a judge.

For this reason, we always recommend that you opt for a divorce by mutual agreement, although we know that this is not always possible. For this reason, it never hurts to have the services of a good divorce lawyer.