What Happens in a Contested Divorce?
Whether you’re thinking about getting a divorce or have started the process, knowing what happens in a contested divorce is a key first step in determining how you should proceed. Your friends, family, and colleagues might have said divorce is time-consuming, expensive, and emotional. This can be true if it is a contested divorce.
Both parties have disagreements about how to allocate the property acquired during their marriage or determine the custody arrangements for their children in a contested divorce. One party may refuse to split proceeds of the house, for example. Or one party may want to split custody of the children, while the other wants full custody of the children. Compared to an uncontested divorce, where the parties ultimately agree to all the terms of the divorce.
What Happens in a Contested Divorce?
Generally, in a contested divorce, the parties present their arguments on why they feel they are entitled to certain property acquired during the marriage, labeled, “marital property”, by a judge. The judge will then decide how all the property is allocated. The courts may require you and your spouse to participate in mediation to try to resolve the divorce quickly. If the parties end up agreeing at any time during the divorce proceedings, the courts are usually willing to enter the agreement and finalize the divorce.
Additionally, what happens in a contested divorce may depend on if you live in a community property state or not.
Check out “Divorce Property Division: Community Property States vs. Equitable Distribution States.”
There are nine community property states, meaning that all the property acquired during your marriage, including but limited to, income, real estate, and retirement benefits, is both yours and your spouse’s no matter whose name the property is under. As opposed to a non-community property state where, when a piece of property is only in one spouse’s name, this property is at risk of being awarded to that spouse only. For example, your spouse may have a retirement account through any means with only their name on the account. In a community property state, you can assert your entitlement to this account. However, in a non-community property state, you may not have a claim to the account.
How long will a Contested Divorce Take and Is it Costly?
In many states, the law requires judges to wait a certain amount of time before finalizing a divorce, contested or not. This waiting period and how much marital property there is to allocate will determine how long a contested divorce may take. A contested divorce can take anywhere from a few weeks to a few years. In New York, a contested divorce takes nine (9) months to a year on average, while in California a contested divorce can take years.
Additionally, going through a contested divorce can cost anywhere from a couple hundred to thousands of dollars. In the contested divorce, you are more likely to spend money on attorney’s fees and expert witness’s fees such as financial consultants. In a contested divorce with many issues to resolve, you can expect to pay around $14,000 to 20,000 or more in most states. On average, California, Connecticut, and Florida are the most expensive state to get divorce in, while North Dakota is the least expensive state.
Consider reading “How Much Will My Divorce Cost Me, Financially and Emotionally?”
Is there Anything Good about a Contested Divorce?
You’ll want to avoid a contested divorce if possible. But if you can’t, there are some good factors of a contested divorce. One of them is that you can get your day in court. You would go through a divorce trial where you can argue your position and present evidence to support your point. A judge will hear both sides and review all the evidence to determine how to allocate the marital property.
A contested divorce also uncovers a spouse trying to conceal assets and can give you a full picture of the spouse’s financials. You may be unsure about every account your spouse may have and in a contested divorce you and your spouse have to share all the assets they have. The parties have to exchange financial documents before the divorce trial starts. This way each spouse is able to get the full financial picture and complete information of the other spouse. If the spouse is found to have concealed an asset, they could be penalized and punished by the court.
Consider reading “Maximizing Your Divorce Settlement with a Forensic Accountant”.
What happens with my Children in a Contested Divorce?
In a contested divorce, a judge will assess what is in the best interest of the child to decide what custody arrangement would be best for that child and will also determine any child support to award. As compared to an uncontested divorce, where you and your spouse agree on custody and child support. In both cases, it is important to remember to consider your children’s long-term needs.
Read “Best Advice on Custody for Divorcing Moms,” written by a top New York City divorce lawyer who specializes in custody issues.
Usually, the judge will try to ensure that the child has continued contact with both parents. The judge will consider many factors including, the child’s needs, who has been the primary caretaker, and the stability of the home each parent can provide. Courts will consider the child’s wants and determine how much weight to give that preference based on the child’s maturity. Many states, such as Illinois and Texas, allow children around 12-14 years old to talk with the judge to discuss where they would like to live. Some states, like New Jersey and Arizona, don’t have a specific age, instead, the judge looks toward the child’s majority level to determine if the child should have a say in these proceedings.
Conclusion
Avoiding a contested divorce is a must if it is possible. But, you may have no choice. No need to fear, these are things to be aware of and prepared for. A contested divorce is not all bad, sometimes you need to go that route to achieve a better outcome for yourself and your family.
NOTES
Taelor Thornton is a third year law student in Chicago committed to representing the most vulnerable people in society such as older adults, women and children. She aims to work in a family-law related firm after graduation and potentially starting her own firm one day.
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*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.”
