Mutual Vs Contested Divorce: Myths And Facts You Need To Know

What Is Mutual Divorce?

Siddharth said, “In a mutual divorce, both spouses agree that the marriage is irretrievably broken and jointly file a petition. They may also mutually settle issues such as property division, alimony (maintenance), and child custody through negotiated agreements. Because there is no dispute regarding the terms, the process is generally faster, less expensive, and less emotionally taxing.”

What Is Contested Divorce?

According to Siddharth, “A contested divorce arises when one spouse either does not agree to the divorce or allegations in the divorce petition and/or disputes the terms (such as custody, support, or division of assets). In this situation, one party must prove grounds like cruelty, adultery, or desertion. The court then decides on contested issues after extensive hearings.
This process is typically lengthier in terms of time spent by parties, costlier, and more adversarial.”

Mutual Divorce Facts

Here are the facts associated with mutual divorce:

Amicability and Cooperation: If both parties are on the same page about ending the marriage and can agree on settlement terms, mutual divorce is preferable.
Cost and Time Efficiency: It minimises legal fees and court appearances, and the waiting period (typically a cooling-off period of six months) is used to ensure both have truly considered their decision.
Impact on Children: With reduced conflict, children (and families too) tend to be less adversely affected.

Contested Divorce Facts

Here are the facts about contested divorce:
Disagreement Over Key Issues: When one spouse does not agree on matters like alimony, custody, or asset division, or if there’s evidence of fault, a contested divorce might be necessary.

Need for Judicial Intervention: In cases where negotiation fails, leaving the court to decide may be the only option, despite higher costs and extended timelines.

Ultimately, the choice depends on the couple’s ability to communicate, the level of conflict, and whether there is genuine consent to the terms of separation.

Is It Possible To Switch Between Divorce Types?

A common myth is that once a mutual divorce has been initiated, a party can simply switch to a contested divorce (or vice versa) if circumstances change. However, Siddharth highlighted that in reality:

From Mutual to Contested: If one spouse withdraws consent during a mutual divorce—for example, during or before the cooling-off period—the process does not automatically become a contested divorce. Instead, the mutual divorce case generally collapses, and a fresh, separate contested petition must be filed.

From Contested to Mutual: Similarly, if spouses initially file a contested divorce but later come to an amicable agreement, they cannot simply convert the ongoing case. They may file an application to the same court requesting for their contested petition to be converted into a mutual consent petition.

Financial Implications In Mutual Divorce

Siddharth highlighted that, in Mutual Divorce, spouses decide on matters like property division and alimony by mutual consent. For instance, they may agree on an equitable split of jointly owned assets or a negotiated alimony amount, or a spouse can even choose to forego any property or alimony irrespective of who earns/owns or has the capacity to earn/own how much. This often results in a smoother financial transition. Such settlements tend to be predictable and may minimise the risk of lengthy disputes.

Financial Implications In Contested Divorce

According to Siddharth, in Contested Divorce, the court determines the financial settlement based on the allegations by one spouse against the other and how much proof of the same they're able to provide along with their own earning capacity /dependency. This can lead to the division of assets, alimony, and child support might be awarded in a way that one party finds less favourable. In addition, the costs of litigation (including higher legal fees) can add to the financial burden. There's no mathematical calculation here and this completely differs on a case-to-case basis depending on numerous circumstances (that both parties are able to prove in court).

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Mutual Divorce Impact On Children

According to Siddharth, with both parents working cooperatively to resolve custody and support issues, the process tends to be less disruptive for children. An amicable agreement may result in joint custody arrangements that prioritize the child’s stability and well-being.

Contested Divorce Impact On Children

Siddharth highlighted that child custody battles in a contested divorce are often more adversarial and acrimonious. The stress and conflict inherent in litigation can have a negative emotional impact on children. Irrespective of what spouses may be going through it is always children (and other family members) who end up suffering collateral damage. Courts decide custody based on the child's best interests, but the process may be prolonged and conflict-ridden.

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