Every divorce is different. In some cases, spouses agree on everything ahead of time. In others, there are varying degrees of disagreements that must be resolved. A contested divorce is generally not pleasant but it may be necessary to protect your rights and interests.
In this guide, I’ll pull back the curtain so you understand exactly how a contested divorce works.
- What Does It Mean to Have a Contested Divorce?
- Differences Between Contested and Uncontested Divorce
- Steps of a Contested Divorce
- How to Prepare for a Contested Divorce
- Is it Worth Contesting a Divorce?
What Does it Mean to Have a Contested Divorce?
A contested divorce is exactly what it sounds like. Either you or your spouse want to contest one or more of the issues that need to be resolved as part of your divorce. Many contested divorces center around the same major issues, including a division of marital assets, the amount and length of alimony, and child custody and visitation issues.
However, contested issues can be about anything that is a sticking point between you and your spouse. You might have trouble deciding how pensions should be split, who gets the house, or even who gets the family dog. By their very nature, marriages are complex relationships, so unwinding the elements of that relationship can be complex as well.
Differences Between Contested and Uncontested Divorce
As you might gather, if a contested divorce is one where you and your spouse have disagreements, then an uncontested divorce is one where you do agree on all divorce-related issues.
There are a lot of differences between the two.
For example, in uncontested divorces, spouses are often able to handle the legal processes on their own. When a couple can cooperate with some degree of trust, this reduces or eliminates the need for attorneys or other divorce professionals to be involved. As you can guess, that means you can save a ton of money (that can be used instead to help you move on with your life).
You’ll also get through the process much quicker. In some states, your divorce can be finalized in a matter of a few weeks. With a contested divorce, the legal processes can drag on for months, or even years.
That also means a contested divorce creates a lot more anxiety and aggravation in your life. Don’t underestimate the emotional toll that a contested divorce can take on you.
When a complicated and combative divorce hangs over your head, it can have a huge impact on other parts of your life. And not just your life. It will also impact the people who are closest to you as well.
Chief among these are your children. Kids are generally very resilient, but when mom and dad are engaged in a nasty battle, there will be damage done to your children’s psyche and mental wellbeing.
Depending on the circumstances of your divorce, friends and family members will be put in an awkward situation as well. Some will want to continue relationships with both of you. Others will be forced to choose. And others will simply walk away from both of you.
This doesn’t mean that a contested divorce is not the right thing to do in many cases. If you’re in an abusive relationship, or you have a spouse who has cheated on you or is a narcissist looking to pummel you into submission, then a contested divorce is the right course of action.
If you suspect a spouse is hiding assets or attempting to create an unfavorable settlement agreement, then you’re going to have to fight to protect yourself.
It’s not an easy process, but if you don’t put up a fight when it’s warranted, you could be damaging your future post-married life for years to come.
Steps of a Contested Divorce
An uncontested divorce is usually a fairly simple process.
You and your spouse will reach an agreement on your issues, draft a settlement, and submit it to the court for approval. In some states, you’ll be required to attend a brief hearing. In others, the judge will review your proposed agreement and sign off without a hearing.
A contested divorce is a lot more involved. Here are the steps and processes you’ll go through before your divorce is finalized:
Step 1: Gather your documents
In a contested divorce, you’ll need to supply a lot of proof to support your claims. The documentation can be extensive ranging from basic financial information to detailed and comprehensive asset, wage, debt, and child-related materials, among others. You may want to gather a lot of this information beforehand since a spouse can become very unresponsive once they know you’re planning to divorce them.
Step 2: Meet with an attorney
After you go through the vetting process to find an attorney, this will be the first of several interactions you’ll have to discuss your case. In addition to discussing the areas of disagreement with your spouse, you’ll want to decide how to best resolve your differences.
You have several options, depending on the nature and level of your conflicts. You may be able to tap into mediation or a collaborative divorce. If there are major trust issues and a high level of conflict, you may move toward more contentious negotiations, arbitration, or as a last resort, going to trial.
Step 3: Prepare and file your paperwork with the court
Once you and your attorney have a better sense of how you’d like to proceed, you’ll prepare an initial complaint and summons and other supporting documents (they vary from state to state) that may include a request for temporary spousal support, child custody requests, and so forth.
When you file, you’ll need to pay a filing fee. Depending on your jurisdiction, this will be anywhere from $75 to as much as $400. Depending on how your spouse is served, you may need to pay a fee for that service as well.
Step 4: Proof of service and a response
After your paperwork is filed, you must legally notify your spouse of your intention to divorce them. Court documents must be delivered by someone else (you aren’t allowed in most states). This is done either by a process server, any person over 18, a sheriff’s deputy, or in some states, by certified mail. You must follow proof of service laws as required by your state.
A spouse will then have a limited amount of time to respond to the petition. This varies from state to state, but is generally 21 to 30 days. If a spouse does not file a response, as the plaintiff, you can seek a default judgment meaning that the court will approve the divorce on your terms. However, in a contested divorce, a response to a complaint is almost always guaranteed.
Step 5: Discovery
Once you have both filed initial paperwork through the court, you must engage in the discovery phase. This means discovering or exchanging detailed information with your spouse.
You’ll have to disclose your marital and non-marital assets and property, income, debts, custody, and alimony related information, and any other documentation that is pertinent to your case. You may have to go through written interrogatories, depositions, and other forms of discovery which can take a long time to finish.
Step 6: Reaching a settlement
After you are fully informed through the discovery process, you can start to find ways to begin crafting a settlement. Some couples go through mediation. In fact, some courts may impose mediation to resolve your differences. This could be followed by case management conferences with the court
You may begin more formal give-and-take negotiations through your attorney. For example, you may agree to give up your interest in the family home in exchange for keeping your full share of your retirement account. The goal is to come to an agreement on as many issues as possible.
Child support, child custody, alimony, and what constitutes a marital asset are often the biggest stumbling blocks. Things can get infinitely more complicated if you own a business with your spouse, have an extremely large block of assets to divide, or spouse wants to inflict as much pain and uses their divorce attorney to fight tooth and nail on all divorce issues.
Depending on the level of acrimony, the complexity of the issues, and other related disagreements, it’s not uncommon for this step to take several months or even a couple of years to reach a settlement that both sides can agree upon.
Step 7: Going to trial
The vast majority of cases are settled at some point along the way. But about 5% of all divorces are not. When that’s the case, you’ll need to go to trial and present your case to a judge. Just like any other trial, you’ll present evidence, witness testimony, and other supporting materials to make your case for a favorable settlement.
While trials are sometimes unavoidable, the downside to a trial is that a judge will decide the issues in your divorce, and not you. Some spouses may welcome this. But the rulings are legal and binding. You could wind up with an unfavorable settlement in how assets are divided, the amount and length of alimony, or how child support and child custody are resolved.
Step 8: Post-trial motions and appeals
If you disagree with the judge’s decisions, you have the right to file a post-trial motion for relief from the final judgment. Most times, you have 30 days to file and the other side has another 30 days to respond to the motion. A motion lets your attorney explain why you believe a ruling is not fair.
When a post-trial motion is denied, you can file a notice of appeal with an appeals court. The other side will also have the opportunity to file a response. In most states, the parties will be granted an oral argument before a court makes a final decision.
If it is reversed, the appellate court will send it back to the trial court for further proceedings. If the case is affirmed, the case is over.
How long does it take to finalize a contested divorce and how much does it cost?
How long it takes to finalize a contested divorce is directly related to the complexity and number of unresolved issues between you and your spouse. The length of time also depends on the level of trust and how much cooperation there is between both sides. You could be looking at a case that can be resolved in as little as 4-6 months, or a case that can drag on for several years.
Part of this answer also depends on your frame of mind, your financial resources. If you only have a half-hearted will to fight, or you’ve got limited finances, then you might want to try and be more conciliatory toward your spouse.
Another way to approach this is to decide what’s really important to you versus what you’re willing to give up as part of a negotiation. If you get custody of the children, then keeping the family house might be a priority, as an example.
As far as costs are concerned, a contested divorce is NEVER cheap. Attorneys will charge as little as $200 per hour up to more than $1,000 per hour. And there can be a lot of hours involved in a contested divorce.
That’s another good reason for trying to narrow issues down from the start. Keep in mind that the more you spend on your divorce, the less there is to restart your life after the fact. Of course, it might be money well invested if you’re fighting for a sizable amount of assets, alimony, or child support. Only you can weigh those decisions appropriately based on your individual situation.
How do I prepare for a contested divorce?
A seasoned divorce lawyer will guide you through the appropriate steps to prepare for a contested divorce. The goal should be to protect your rights while trying to come to an agreement that makes sense for both sides.
Gathering documentation and strategizing what you want as a final outcome are keys to preparation. It’s better to over-prepare than to go in half-heartedly. Always assume your spouse is going to be a formidable opponent. A good attorney will shore up any holes on your side and expect the same from your spouse.
You’ll also need to prepare mentally and emotionally for a contested divorce. Spouses often overlook this part of the equation. A divorce lawyer may help you with this, but don’t be surprised if you also need to rely on a therapist to help you through. It’s a long road from submitting a divorce petition to having a judge sign a final decree.
Consider an investment in your mental health as money well spent.
Is it worth contesting a divorce?
You need to decide this question for your own personal situation. There are pros and cons for entering into a contested divorce, as well as trying to frame what issues are to be contested.
If spouses agree on most issues upfront, then a limited contested divorce may make sense. When you cannot agree, or you’re being bullied or taken advantage of, then retaining divorce attorneys and waging a solid fight should be considered.
The bottom line is that there are a lot of factors to decide if you should enter into a contested divorce or not, and those are probably left more fully explored in a different article.