CONTESTED OR UNCONTESTED?

Many people, not just lawyers, use these terms to describe a court case. For example, “this is an uncontested divorce case” or “we’re in the middle of a contested custody case.” The terms are so common that it can be easy to gloss over them or even to misunderstand them. But it can be important to keep these terms straight when you are consulting with (or thinking about hiring) a lawyer to help you.

One rule of thumb to help keep the terms straight is to remember that our court system is called the “adversary” system, which means that it is one party vs. another party in a dispute, an argument, a trial, a battle, a war, a contest, even if the parties are friendly and cooperative and both want to get the case resolved (settled) reasonably quickly. The system traces its roots all the way back to forms of jousting between two knights and “trial by combat” where the winner of the “dispute” was the guy who was not dead at the end. Now it is generally believe that our adversary system of justice leads to “truth” and “justice” as two parties present evidence and zealously argue to persuade a judge or jury that they are “right” and that they should “win” the contest. So generally every court case, with a few rare exceptions, is one party against another party.
 
So when we speak of an “uncontested” divorce case (or custody case or guardianship case or whatever type of case), we mean that we believe that both parties are friendly, reasonable, and cooperative and that they agree on how to resolve the legal case. When a person asks for a lawyer to help him or her with an “uncontested” divorce, he or she does not expect the spouse to disagree about any part of the divorce case, from dividing up assets and debts, to child custody and financial support. He or she might even expect that the spouse would not even come to a court hearing so that he or she would “win” because the spouse did not “contest” the case. If he or she is correct and the spouse does agree with everything, then the uncontested case has few, if any, surprises for a good lawyer, who can help in a fairly quick, efficient, and inexpensive way. At Claflin Law, we refer to this as the “easy” way.
 
On the other hand, when we speak of a “contested” divorce case (or custody case or guardianship case or whatever type of case), we mean that we believe that the parties do not agree on how to resolve every part of the legal case. Both parties might be friendly and reasonable, but they simply have one or more areas of disagreement. When a person asks for a lawyer to help with a “contested” divorce, he or she expects the spouse to disagree with at least one part (and often many parts) of the divorce case, including the divorce itself, or how to divide up assets and debts, or what custody is best for the kids, or financial support. Although he or she hopes that the spouse will come around and “settle” the case, he or she expects that the spouse will “contest” the case – at least at first. A good lawyer can help to protect him or her from legal “harm” and to help him or her achieve his or her legal goals, but a contested case will have surprises for the lawyer to handle, will be more complicated than an “uncontested” case, and as a result will almost always be more time-consuming and more expensive. At Claflin Law, we refer to this as the “hard” way.

During an initial consultation with Claflin Law Ltd, potential clients have the opportunity to discuss and give their best prediction about whether the “other party” to their legal case will or will not be friendly, reasonable, cooperative, and agreeable, so that the case can be properly treated as either uncontested or contested.