Is a Contested Divorce for You?
If you are dealing with divorce, you’ve probably heard the term “contested divorce” and how you should try to avoid one. A contested divorce occurs when spouses do not reach an agreement on the most important issues of a divorce. This may include a disagreement on the grounds for the divorce, custody, visitation, child support, maintenance, equitable distribution, or counsel fees. Technically, there could be a disagreement on only one important issue, and you might file for a “contested divorce.” Although many couples wish to proceed with an uncontested divorce, most people begin the divorce process unable to agree on every key issue.
You are divorcing each other for reasons that may include disagreement on many things. This is quite common.
What Happens During a Contested Divorce?
For example, in New York State, during a contested divorce, if the parties are unable to come to a resolution on all important or substantive issues, one spouse may file an RJI (Request for Judicial Intervention). This commences a court process, which involves a roadmap of your case. The Court sets a timeline that includes your court appearances and outlines specific items (like homework) you must complete before each date. You will appear before a judge. That judge will make decisions on ongoing matters for your family. Your lawyer or yourself (if you choose to represent yourself) may need to file motions to ask for things that you need. You or your lawyer may request things like spousal maintenance, child support, add-on expenses, or sole and exclusive occupancy of the marital residence.
The Court Process and What to Expect
During a contested divorce process, you will have an opportunity to exchange discovery and conduct depositions, and if the divorce progresses and there is still no resolution, a trial may be necessary. At trial, spouses will testify and be cross-examined, and exhibits will be entered into evidence. The judge will then make the final decision regarding any remaining issues between the spouses. You have a right to appeal any final decision made by the judge. Keep in mind that most judges are overworked and have massive caseloads. They greatly prefer for you and your spouse to settle the matter without their help.
Trials Are Rare but Sometimes Necessary
Most contested divorce cases do not end with a trial.
Just because your case begins as contested does not mean that it will end that way.
Most cases settle before ever going to trial.
While an uncontested divorce is usually faster, less stressful, allows you more control over major decisions involving your family’s future, and can be cheaper, it may not always be realistic or possible. Sometimes, pursuing a contested divorce is the only way to secure what you and your children legally deserve. If you’re in a “contested divorce” rather than an “uncontested” one, don’t feel ashamed—there’s no reason for any stigma.
Trigger Warning: Women need to understand that having a “contested divorce” is not always a negative. Read that again. Please keep repeating it to yourself.
A lot of women thinking about divorce or beginning it want to know what is a contested divorce and, once they learn about it, what they can do to avoid one. The reality is that the answer to this question may be based less on what you do now and more on a careful analysis of your marriage and its circumstances. Avoid misdirecting yourself from the start because sometimes contested divorces are absolutely necessary. While we all want to avoid ongoing pain from a toxic marriage and the unknown, sometimes it is best not to listen to media influencers or friends who implore you to proceed with mediation or an uncontested divorce because it was positive for them.
Divorce advice that we share with women over and over again is to remember that every marriage and family is different. What is good for others is not always going to translate into being good for you.
Tips for Women to Avoid Having a Contested Divorce
-
If you had a short-term marriage, no children, and very few assets.
Your case is ripe to be uncontested. There are fewer assets to fight over and no children to worry about. These are usually the easiest cases to solve and the quickest to put in the potential “uncontested” pile.
-
Did you enter into a prenuptial agreement or post-nuptial agreement with your partner?
If you answer yes and don’t intend to overturn the prior agreement, you’re more likely to have an uncontested divorce because the agreement already resolves many financial issues, including debt allocation, spousal maintenance, and equitable distribution.
-
Consider mediation first.
If you are successful at divorce mediation and able to iron out an agreement on all substantive issues such as custody, visitation, equitable distribution, child support, and spousal maintenance with your spouse, it will be far easier for you to pursue an uncontested divorce.
-
Have a marriage with financial transparency.
It is easier to proceed with an uncontested divorce when you have a full understanding of your family’s assets and debts. You should also have access to your partner’s bank accounts, safe deposit boxes, investment accounts, and tax returns, and a comprehensive understanding of how much income your partner currently earns or previously earned. When one partner lacks transparency around the finances, a contested divorce becomes more likely. In that case, your attorney may conduct discovery and potentially subpoena your spouse’s financial records to fully understand your family’s finances.
Discovery methods such as depositions during a contested divorce can result in you finding significantly more assets or debts than you were initially aware of. Had you quickly settled with an “uncontested divorce” from the start, you may not have learned of these significant assets that you could have potentially been entitled to.
Learn what else you should be doing to best protect yourself with “55 Must Do’s on Your Modern Divorce Checklist.”
-
Determine if you and your partner can maintain a genuine level of mutual respect and a desire for cooperation to promote the best interests of your family.
Again, if you have had a trusting marriage and sincerely believe that your partner is not trying to “cheat” you out of what you are legally entitled to, your chances of avoiding a contested divorce are higher. But some women can fall prey to manipulation here. A soon-to-be ex-husband claiming that “an uncontested divorce is cheaper, easier, and less stressful for everyone” who has not treated you kindly during the marriage or has not always been financially transparent with you may be saying what is really in his own best interests and not yours.
-
Lean into the reality that you may not have chosen to divorce, but that does not mean you will be a victim or lose control over your future.
If your husband leaves you, or the divorce was not initiated by you, you should be more skeptical of immediately “settling” with your spouse or rushing to obtain an uncontested divorce. You should consult with a good divorce attorney first to learn your rights and what you are entitled to. Check out our piece on how to find a good divorce attorney here.
Sometimes, a contested divorce is a tactical move that can be used to your advantage as time equals money. If the other side is ordered to keep paying for your upkeep (pendente lite payments) you may gain significant leverage down the road in negotiations.
Perhaps minimizing their pendent lite payments for a larger chunk of equitable distribution (think sales proceeds from a marital residence) or a discussion of appropriate offsets (reducing child support in exchange for more money from your spouse’s retirement or investment funds) may also be an option.
Again, while uncontested divorces may seem preferable, contested divorces are not something to be scared of or ashamed of. Sometimes, they are necessary and the best means for securing what you deserve. If you have questions as to whether an uncontested divorce or contested divorce is more appropriate based on your circumstances, please feel free to reach out to me or a seasoned divorce attorney near you.
NOTES
Meredith L. Singer is an experienced NYC family law attorney who recently started up her own practice. She is a zealous advocate for her clients and strives to keep legal representation affordable and accessible. For additional information, visit her website at: www.meredithsingerlaw.com.
Since 2012, SAS for Women has been entirely dedicated to the unexpected challenges women face while considering a divorce and navigating the divorce experience and its confusing afterward. SAS offers women six FREE months of email coaching, action plans, checklists, and support strategies for you, and your future.
All of it sent discreetly to your inbox. Join our tribe and stay connected.
*We support same-sex marriages. For the sake of simplicity in this article, however, we refer to your spouse as your “husband” or a “he.”
