Often in a marriage, a couple builds a family together and may jointly own a house and other valuables. If, at some point, they decide to divorce, it can be hard to see eye-to-eye about what to do about support, who the kids live with and how to divide hard-earned assets. While disagreeing about the terms of divorce is normal, it can further complicate an already thorny process.
You may be able to eventually find mutual ground about some issues. But if you can’t agree on everything, you have what’s called a contested divorce. This can be a long and expensive process, so read on to better understand what contested divorces entail and how you may be able to avoid one.
What does contested divorce mean?
A divorce is considered contested when the spouses can’t reach an agreement on the terms of their divorce. These terms may include child custody, child support, spousal support or how to divide assets. Contested divorces also include those where one spouse can’t locate or get in contact with the other and where one spouse doesn’t want to divorce.
Much of the time, spouses try to come to an agreement about their divorce terms to avoid settling in court. Going to trial often takes longer and costs more because you may need to hire a lawyer to represent you.
Contested vs uncontested divorce
As you might guess, an uncontested divorce is one where both parties agree to end the marriage and both (eventually) reach an agreement about the terms of their divorce.
Oftentimes the spouses hire a neutral mediator or attorneys to help them communicate about the terms and, when necessary, find a compromise that satisfies both parties.
Once the spouses reach an agreement about all terms of their divorce, with the help of an arbitrator, mediator or lawyer, they create a settlement agreement. This agreement is presented to a judge as part of the divorce and signed. At that point, the divorce is considered final.
Mediation is often an attractive option because you avoid going to court—and that means an uncontested divorce is typically less expensive, takes less time and is less tumultuous than a contested divorce.
The contested divorce process
The divorce process varies by state. Consult with a lawyer who can walk you through the laws and regulations specific to where you live or where you’re planning to file.
With that in mind, the overall contested divorce process is as follows.
1. File for divorce
Regardless of state, the process begins when one spouse files for divorce. In some parts of the country, you can file for divorce online. Otherwise, you must file in person. Either way, a lawyer can help you properly fill out the necessary documents.
In ‘fault’ states, one spouse must assert that the other is ‘at fault’—meaning that their actions are to blame—on the filing documents as part of the grounds for their divorce.
There’s typically a waiting period either before or after filing. This means that whether your divorce is contested or uncontested, it can’t be finalized within a certain number of days. For example, if the waiting period is 60 days, you have to wait at least that long before your divorce can be finalized, even if you reach a settlement agreement more quickly.
Note that it’s often possible to waive the waiting period in the event of domestic violence incidents or if orders of protection have been issued against one spouse.
2. Serve divorce papers
Divorce papers must be delivered to (or served upon) the spouse who did not file, otherwise known as the defendant. In each state, the spouse who filed has a specific number of days to serve the papers. The spouse who is served must, in turn, respond to the filing within a set number of days that also varies from state to state.
3. Mediation
Mediation may be used in contested divorces for a few reasons:
- It can help spouses realize that they’re, in fact, not in agreement about one or more divorce terms.
- It may help spouses settle at least some terms of their divorce. The more terms you’re able to figure out together outside of a courtroom, the less cost you’re likely to incur since your lawyer won’t have to spend as much time proving your case about the terms that are still in dispute.
- The more a couple can work together to settle their differences, the greater the odds are that each person will end up with some of the assets or terms they want. If you leave every term for the judge to rule on, you’re in less control of the outcome.
4. Pendente lite hearing
If you have issues that can’t wait for the divorce to be granted—such as which spouse remains in the home or who pays certain bills—a temporary hearing (sometimes called a pendente lite hearing) is available. At this hearing, a temporary order (or agreement) is entered by a judge. This order doesn’t prejudice either party at the final hearing but does offer guidance along the way in terms of temporary support or custody and visitation.
5. Preliminary appearance in court
Many states require a preliminary appearance in court with a judge and both spouses present within a specific number of days of filing for divorce. The point of this is to establish a schedule for discovery and subsequent hearings, and for the judge to explain the rules of engagement.
6. Discovery
After the preliminary hearing, in preparation for trial, there’s a process called discovery. During this, each lawyer prepares evidence to satisfy the burden of proof. Basically, each drafts a list of questions for the opposing spouse. You’re expected to supply evidence to answer all of your spouse’s lawyer’s questions. This may include records of debt, property deeds, bank statements, retirement account information and more—almost anything is fair game. The spouses and lawyers then exchange evidence.
Discovery must conclude within a specific time period of the preliminary appearance in court.
7. Litigation
After discovery, a trial date is set. Your lawyers will prepare their arguments and then you’ll go to court. In a litigated divorce, the judge may be responsible for determining:
- Whether the grounds for your divorce are valid
- Child custody
- Distribution of property or whether its value should be split between spouses
- Spousal support
If the spouses have reached any agreements during mediation or on their own, these are included in the court order, and the judge decides the rest.
After both sides present their case, the judge makes a final order.
This next part differs depending on the state. In some states, you’re issued a divorce decree that is signed by the judge. This multiple-page document includes private information about both spouses, such as their social security numbers, and lists all the terms of the division of assets. Other states only provide a divorce certificate that indicates that the couple is divorced and lists the date of their divorce. And some states provide both a decree and a certificate.
After the judge signs the divorce decree (or, in states without decrees, when the judge makes their final order), you’re considered officially divorced.
If either spouse is unhappy with the result for a reason that is deemed admissible, they can return to court to appeal. Admissible reasons include if one spouse can prove they were coerced by the other during the process or if material circumstances have changed for one or both spouses, such as if one lost their job and can no longer afford to pay the amount of spousal or child support ordered by the judge.
Talk to a divorce lawyer
Divorce can drain you mentally, emotionally and financially. Having a contested divorce can take all of that to the next level. Find ways to take care of yourself and find support, including experienced legal counsel. It may still be painful, but if you choose Marble to represent you, we’ll do our very best to support you through your divorce so that you can heal.
When she’s not writing articles for Marble Law, Miranda Shulman works at Penguin Random House, is a BookEnds SUNY Stony Brook writing fellow, and lives in Brooklyn with her cat.
