A contested divorce occurs when one or both spouses do not agree about how to resolve all of the issues that arise during a divorce. Or, if one spouse simply does not agree to the divorce, it is a contested divorce. If any of the above subjects are at issue or in dispute between the parties, then the couple must file a petition for a contested divorce.
In contrast, if the parties are able to reach an agreement on the majority of these issues, such as child custody arrangements and the division of assets, then they will most likely be eligible to file for an uncontested divorce. Generally speaking, uncontested divorces tend to be easier and less expensive to execute in comparison to contested divorces.
What Are Some Tips to Follow If I'm Considering Contesting a Divorce?
If a person believes that they should contest their divorce, they want to take the following into consideration:
- Make Full Disclosures: Do not hide assets. The court takes this seriously, and a person can be liable for hiding assets, and held in contempt of court. Honestly disclose accounts and the amounts in them, as well as other assets;
- Child's Best Interest: In any kind of divorce, a person should put their child's best interests first. Divorce can take its toll on everyone, especially children. Keep their well-being at the forefront. This is what a court will do in the end in any event;
- Consult an Attorney: An experienced family law attorney can be a valuable source of guidance and information.
Contested Divorce Process
A contested divorce is accomplished by filing the divorce papers and then serving your spouse with them. One spouse hires a divorce lawyer to file divorce documents with the court to open the case. They serve the documents to the other spouse. This gives the spouse notice you are requesting a divorce, and notice of your claims. The served spouse has 21 days to respond to the documents.
A case management conference (known as a CMC) is scheduled. This is most likely your first hearing in court and is held about 90 days after the documents are filed. At this hearing the judge makes temporary decisions on custody, financial support, and other temporary orders like who will live in the house.
Then discovery is opened. This means both sides can request documents and hold depositions. Both sides' attorneys use discovery to gather evidence for the upcoming trial. At trial documents are shared and witnesses testify before the judge. Family court is a judge trial, not a jury trial. After both attorneys have presented their evidence a judge makes a final ruling on all the claims and files a final divorce decree.
Most contested divorce cases settle. Only 10% of divorce cases actually go to trial. If a case is going to settle there are two times which it is more likely to happen. Right before the case management conference, and right before trial. Why do cases settle here? Our guess is because the divorce attorneys and the clients are preparing for the upcoming hearing. This preparation gives everyone a moment to assess the merits of their claims.
Commonly Contested Issues in a Contested Divorce
Divorce typically involves several legal issues, and usually, the longer the couple has been together, the more complex their divorce may be. Other factors that could give rise to contested legal issues would be the following:
- Alimony, or Spousal Support: If one spouse is dependent on the other, then coming to an agreement about the payment of spousal support might be a contested issue;
- Division of Assets: If the couple have many assets, e.g. a shared home, or if they have significant interests in retirement benefits, such as pensions or retirement accounts, division of these assets could be contested;
- Division of Debts: If the couple has a significant amount of debt that has to be paid off, this could become a contested issue;
- Child Support: Whether one member should pay child support and in what amount is often contested;
- Child Custody and Visitation: Whether one parent should have sole custody or custody should be shared can be contested. If one parent has sole custody, then visitation arrangements may be difficult to resolve;
- Business Issues: If the parties have a family business or if one of the spouse's is the owner of a share of a business, e.g. a partnership interest, the issues involved in separating the interests of the parties can be challenging.
What If I Have a Serious Dispute Over a Legal Issue?
If a person has a serious dispute concerning a legal issue involved in their divorce, they should consult a family law attorney and inform them of the issue and their concerns relating to it. A person should prepare material regarding the issue to hand over to their attorney and fully inform them of the facts related to it.
How Are Contested Divorce Issues Resolved?
If issues are contested in a divorce, the court holds a trial of the contested issues. Attorneys for each of the spouses present their evidence and make arguments to the court. After the trial, the court makes decisions about the issues that were tried.
In making its decision, the court takes into consideration the facts as shown by the evidence, of course, as well as the following factors:
- The length of time the couple was together;
- Whether or not children are involved;
- Each spouse's individual relationship with the children;
- Quantity and nature of accumulated assets and debt;
- Whether or not the couple shared joint business endeavors.
This is not an exhaustive list. There are other factors that a court will consider, in part depending on the law of the state in which the divorce takes place.
What If My Spouse Will Not Sign the Papers?
If a person's spouse refuses to sign a settlement agreement, the person may still obtain a valid divorce, but they have to go through a court of law. Their attorney can help them navigate their way to a divorce that involves dealing with an uncooperative spouse.
How Can a Lawyer Help Me?
Contesting a divorce is typically much more difficult than an uncontested divorce case. A less than cooperative relationship with your spouse can be emotionally challenging on you as well as your children. An experienced divorce lawyer can provide you with guidance on your case, and work diligently to protect your best interests in court.
Call our office today at 212-994-7777 or complete the convenient online contact form to set up a consultation.
