What is a Contested Divorce?

As you think about, or begin the divorce process, you’ve probably heard the words “contested divorce”. This may leave you wondering, what the heck is a contested divorce? Aren’t most divorces adversarial by nature? (Things are ending and chances are you don’t agree on things, terms, or who will get the cat.) If so, isn’t a “contested divorce” … redundant?

It turns out, there are two types of divorces, a contested divorce and an uncontested divorce, one more civil and the other not. You will want to know the difference — and which one you’ll want to shoot for if your story makes it possible.

What is a Contested Divorce?

A contested divorce occurs when the spouses do not reach an agreement on grounds for the divorce and all of the important issues including how custody, visitation, child support, maintenance, equitable distribution, and counsel fees should be resolved. During a contested divorce, the spouses will have to appear in court (appearances may be virtual or in person based on your geographical location and the preferences of your assigned judge) and a judge will proceed to make substantive decisions on the matter. 

What is an Uncontested Divorce?

An uncontested divorce is when the spouses have agreed to divorce, agreed to the grounds for divorce, and have agreed on all substantive issues. Most importantly, the spouses will not have to attend court and a judge will not make decisions on their case. 

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Depending on where you are mentally and emotionally, you may feel more anchored by checking out “36 Things to Do If You are Thinking About Divorce.”

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Why is an Uncontested Divorce Preferable?

If you and your soon-to-be-Ex get along well enough to resolve what post-divorce life should look like, including the ongoing care of the children and the distribution of marital assets and debts, an uncontested divorce is preferable. Here’s why:  

• An Uncontested Divorce is Faster: You may have to take a significant amount of time off from work to attend various court appearances, depositions, and even a trial in a contested matter. An uncontested divorce gets processed quickly. This means that the spouses will obtain their final Divorce Judgement more quickly than in a contested divorce.
• An Uncontested Divorce is Less Stressful: Generally, you and your spouse will have control and power over the process. This means feeling more at ease about what happens in your future. When you go “contested,” you lose that power.
• An Uncontested Divorce is Less Expensive: Legal fees can be a killer. Most people agree that it is in their family’s best interest to preserve their assets and wealth as much as possible. When you have children to consider, it makes rational sense to want to save a nest egg for summer camp, child care, and college rather than depleting funds to fight. 

Do uncontested divorces ever become contested? If so, when?

Yes! Unfortunately, this is common. As any divorce attorney will tell you, the spouses may have a global agreement ironing out every last detail. Both individuals may have previously agreed in emails and in numerous conversations to all of the terms, but at the last minute, one of them reads the Divorce Agreement/Stipulation of Settlement while they are about to sign and decides that they no longer wish to sign the Agreement without just “one more change.” All too many times, that one change can be significant such as visitation, the amount of child support, a waiver of spousal maintenance, or even who will pay the other party’s counsel fees. This last-minute change or resistance to signing can mean going to court.

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Consider reading “What Happens in a Contested Divorce?”

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Are there instances when you should pursue a Contested Divorce? If so, when?

Yes. There are instances when you should pursue a contested divorce and not waste time trying to “amicably settle”. 

There’s been domestic abuse

If your marriage was rife with verbal abuse and domestic violence, it would be challenging for you to pursue an uncontested divorce. Frequently, the abusive party will manipulate and gaslight the other. The abusive spouse may attempt to exert coercive control. For example, they may lie and make promises that they do not intend to keep to induce the other party to sign an unfavorable agreement. This type of attempted control is pervasive in divorce dynamics.

If you do not think that your spouse will be fair in a divorce, you may do better in front of a judge.

One spouse is set on exacting revenge for a long period of time

I was retained to represent a person who had engaged in an extramarital affair. It was clear that the other spouse wished to seek some form of punitive vengeance. The “jaded” spouse engaged in pervasive shaming, control, and guilt strategies. The “jaded” spouse also threatened my client to sign an uncontested divorce agreement that was clearly and significantly beneficial to the other spouse and detrimental to my client. The angry spouse bullied my client into thinking that NYC judges would view adultery harshly and even threatened to tell the parties’ young child about extramarital relations. (In reality, while all cases are fact-specific, New York judges usually care a great deal more about one parent threatening to alienate a child against the other parent than alleged infidelity.) This particular case ended up going contested. In my opinion, it should have been contested from the start, but my client was adamant on trying to work it out as amicably and quickly as possible to be done with the stressful situation and the soon-to-be ex-spouse.

It is very challenging to have an uncontested divorce when one party is angry and vengeful for a long period of time.

One partner is committing marital waste and is dishonest

If you suspect your spouse is hiding assets or engaging in marital waste, please see a lawyer in your state right away. You may need to retain a forensic accountant to discover hidden bank accounts or to conduct a comprehensive tracing of how marital assets have been used and transferred during the marriage. Cases involving Swiss bank accounts and international wire transfers to other countries and entities are not just sensational television dramas. They are quite common and often become contested and rightfully so. 

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Check out, “Smart Moves for Women: A Financial Consultation for a Divorce.”

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What is marital waste?

Divorce laws vary from state to state. New York Courts consider marital waste claims when one spouse spends money or dissipates marital assets to the detriment or impediment of the other. Common examples include when a spouse spends or “wastes” marital funds on gambling, drugs/alcohol, prostitution, or an extra-marital affair. One spouse may even start transferring marital funds, businesses, or other assets to a non-party to prevent the other spouse from having those assets. 

The theory behind the concept of “marital waste’ is that marital funds should not be depleted on “wasteful” items because marriage is supposed to be an economic partnership. 

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. 

 

Join us for Annie’s Group! 

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Our goals are simple but life-changing. We want all participants to learn about their rights and their life options so they make smart, informed decisions. Making decisions from an empowered place fosters healthier outcomes for everybody. 

Learn more about Annie here.

 

*SAS continues to support same-sex and nonbinary marriage. In this article, however, we refer to your spouse as husband/he/him.