Divorce is not an easy process, and many spouses find themselves in the middle of a contested divorce case. So, what is a contested divorce, and what should you expect?
Contested Divorce Defined
Divorce cases can be either contested or uncontested depending on the ability of both parties to agree on a settlement. If both parties agree on every issue of the case, the divorce is uncontested. However, if neither spouse can agree on one or more issues, it becomes a contested divorce.
Time and Cost
In general, contested cases take longer and cost more. Depending on the situation, spouses may need more time to negotiate and provide evidence to persuade the court, which extends the timeframe of the case and incurs more attorneys' fees.
Whether a couple has an uncontested or contested divorce, the first step is filing the petition. The petition or complaint is the documentation necessary to start the legal process, and spouses need to provide documents and information related to the case and file the petition successfully.
The petition must include the following information:
- Contact information for both spouses
- A statement proving that both spouses meet state residency requirements
- The location and date of the wedding
- Each spouse's name before marriage
- The separation date (the date when the couple chose to live separately)
- Grounds for divorce (the reason for the divorce)
- Information regarding children (birthdates, names, social security numbers, etc.)
- Potential need for spousal support
- Child custody goals
- Statements of marital and individual property ownership
Include original copies of each document when possible and be prepared to pay a filing fee. The fee may differ depending on the municipality in which you file, so check with the clerk to ensure that you have everything you need to file.
Answering the Petition
Once a petition is filed, the other party must respond. The other party can either agree to the divorce or file a counter-complaint. Typically, counter-complaints occur when one spouse has different reasons for wanting a divorce or has additional terms that must be met.
Once the petition is served, the other party has limited time to respond or issue a counter-complaint. If they do not respond to the petition within the time limit, the divorce is granted by default.
Disclosures and Exchanges
When the divorce is underway, both spouses must go through a phase where they exchange information and provide disclosures. Most of these disclosures are related to finances. Because divorce results in the division of assets, each spouse must provide individual and marital property documentation.
Other documentation includes:
- Mortgage statements
- Titles and deeds
- Bank information
- Tax returns
- Debt statements (student loans, medical bills, car loans, etc.)
- Retirement fund or pension information
- Business statements
- Investment statements
In some cases, a spouse may need to give the court documentation related to their military service and pension. Military divorces have a slightly different process, and both parties may need to meet different requirements to qualify.
High-earning spouses also have to complete extra steps during the disclosure and exchange process. The court may require the high net worth spouse to get appraisals and valuations for property, assets, or investments with high yield/value and information regarding off-shore accounts or international property.
These documents are necessary to calculate alimony, property division, and child support. The judge will use the information from this process to determine the fairest division of assets, along with spousal and child support.
If spouses have children, the judge will use financial information to decide which parent has physical custody whether the parents share custody and visitation rights. The judge may give physical custody to the higher-earning parent or allow the lower-earning parent to have physical custody with the expectation that they will receive child support.
Hearings, Orders, and Discovery
Divorce is a lengthy process regardless of the spouses' ability to reach an agreement. The court must evaluate the grounds for divorce, examine the documentation, and determine the custody arrangement. In a contested case, the court may hold temporary hearings to help both parties agree on a term of the settlement.
The discovery phase of divorce allows both spouses to formally request information. The parties may request depositions and/or subpoena information from a third party. Once a request is made, the court will provide a deadline for when each party mut respond. The disocrvery phase is often the most time-consumig part of a contested divorce.
A divorce does not have to go to trial if both spouses can reach a mutual agreement. When both parties work together, they can work through the agreement and decide on property, child custody, and support without the interference of a judge. They may need to attend a hearing, but they can avoid a formal trial once an agreement is made.
Mediation involves a third party who acts as a mediator between spouses and helps to provide a listening ear and an impartial opinion. The court will recommend mediation to help both parties reach a mutual settlement in many cases. If mediation does not work, the case may go to trial.
Divorce trials have a similar process to criminal trials. Both sides must provide evidence, supply witnesses, and plead their case to the court. The trial is the most emotionally charged step in the contested divorce process. Spouses may be asked to prove why they are the better parent or argue for their right to marital property.
Once both sides have made their case before the court, the judge will decide on the property division, child custody, child support, and alimony. Keep in mind that the judge has little familiarity with your situation beyond the documents provided to the court.
After the trial, the court will finalize the judge's decision and produce a final judgment. Both parties receive a copy of the final degree, which includes terms both spouses must meet to comply with the judge's decision.
If spouses disagree with the final judgment, they may pursue court order modification which adds additional time to the case and further complicate matters.
Contested divorces are complicated and emotionally charged. Not only are they more expensive and time-consuming, but they also require both parties to provide extensive documentation and prove their case before the court.
It's important to note that while contested divorces sound "bad," they are simply a method for separation that takes more time. Each couple is different, and their circumstances may not lend themselves to an easy agreement. Sometimes a trial is necessary, and the court must intervene. Either way, spouses are not bad people if they cannot reach a settlement.
If you are considering a divorce or need legal guidance regarding separation, contact Trabolsi | Levy | Gabbard LLP. Our team of compassionate legal professionals can give you the peace of mind you need to pursue a brighter future.