Often, the cost of legal services depends upon whether a proceeding is “contested” or “uncontested.” The meaning of the terms may vary depending upon the context, the venue or the particular habits of the attorney(s) involved. Prescott AZ lawyers know that in a law practice involving civil matters, there are several areas of the law that lend themselves to a separation between contested and uncontested matters.
Dissolution of marriage proceedings are generally considered to be uncontested when the adverse party does not “make an appearance” in the proceeding. Making an appearance involves filing a response to the petition for dissolution or filing a notice of appearance. Some lawyers consider any contact by an attorney representing an adverse party to render the matter contested.
In an uncontested dissolution of marriage proceeding the petition for dissolution is either served on the respondent or the respondent accepts the documents and signs a waiver of service of process which is then filed with the Court. After the time to answer has expired, the default of the respondent is entered. A default hearing is scheduled and either the petitioner or respondent testifies at the hearing. Many times in an uncontested proceeding an agreement will be worked out between the parties and then reduced to writing. If there is any negotiation between the attorney for the petitioner and the respondent or an attorney representing a respondent, the matter may be considered to be a contested matter.
Many informal probate matters are uncontested. A beneficiary may or may not be represented by counsel. Some attorneys consider an informal probate proceeding to be contested if a beneficiary presents a claim or otherwise causes the personal representative’s attorney to spend time above and beyond what would otherwise be necessary to process the probate proceeding. Depending upon the amount of time spent in negotiation, the presence of an attorney for a beneficiary or claimant may be considered enough to turn the proceeding into a contested matter.
Formal probate proceedings are, by their very nature, considered by most lawyers to be contested proceedings. The same is true of supervised probate proceedings. These types of proceedings involve substantially more time, effort and work than the ordinary informal probate proceeding.
A lawsuit is generally considered to be uncontested when the defendant(s) do not make an appearance in the case. The defendant is either served with process or accepts service of process and signs a waiver of process document that is filed with the Court. After the time to answer has expired, the default of the defendant is entered. A default hearing may be scheduled and the plaintiff or another testifies at the hearing. Or, a motion for entry of default judgment may be filed. After the default hearing or determination of the motion, a default judgment is entered.
A contested lawsuit involves efforts by the defendant or counsel for the defendant that have the effect of making the plaintiff and/or plaintiff’s counsel perform additional work above and beyond what is needed to obtain a default judgment. If an answer is filed by the defendant, the litigation is instantly transformed from an uncontested proceeding into a contested proceeding. If the defendant or defendant’s counsel attempt to negotiate in order to avoid the entry of default, the proceeding may be considered by some lawyers to be contested even though eventually an agreement may be reached that results in the entry of a default judgment.