A contested divorce occurs when a couple cannot agree on the issues involved in the dissolution of their marriage. Because of this, they go to trial and the judge decides the issues in the divorce. Contested divorce is the most expensive, most contentious and longest type of divorce process available. In the following sections, learn why contested divorce is something many people try to avoid, why divorces get contested and possible alternatives.
Why Couples Avoid Contested Divorces
In a contested divorce, the couple is unable to agree on some or all of the decisions needed to end their marriage. The case is filed in court and both spouses usually hire attorneys. The attorneys spend months negotiating and collecting evidence. Numerous court appearances are held. Eventually the case gets scheduled for a trial which may take several days spread out over several weeks. The judge then makes the final decisions about every issue involved in the divorce.
The longer the contested divorce process takes, the more expenses accrue. One can expect to spend several thousand dollars; the average cost of divorce ranges between $15,000 and $20,000, but a highly contested divorce usually costs more. Often, in addition to attorney fees, the couple hires experts to evaluate issues and to testify about them.
Contested divorce may last many months or more than a year. This means time away from work or family as you meet with your attorney and appear in court.
In addition to monetary costs, a long and hard-fought contested divorce can be draining mentally and emotionally for everyone involved. For this reason, it is not uncommon for a divorce to start as contested but eventually settle.
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Reasons to Contest a Divorce
There are several reasons that could lead to a contested divorce.
- Division of marital assets: If a couple cannot decide how best to divide property or which items qualify as marital assets, they will likely need a judge to determine this on their behalf.
- Spousal support: The couple may not agree whether spousal support should be payable or in what amounts.
- Child support and custody: When there are children involved, one or both parents may fight very hard for a type of preferred arrangement, whether it is full custody or visitation rights. Additionally, the couple may not agree on the amount of child support that will be required.
- Prenuptial agreement: Just because a prenup exists does not automatically make it uniformly enforceable. For instance, Texas holds that a pre-marriage agreement is unenforceable if the court determines there was coercion.
- Grounds: Although all states allow no-fault divorce, a spouse may still choose to use grounds for the divorce (such as adultery or abandonment) which the other spouse must agree to or it must be proven at trial.
What to Do if Your Spouse Contests the Divorce
If your spouse contests the divorce, there are steps you can take to achieve your desired outcome.
Discuss Options With a Divorce Lawyer
Before taking action, it is vital to seek the advice of a knowledgeable and experienced divorce attorney. If you are worried about the cost of legal counsel, seek lawyers willing to work “pro bono,” or on a volunteer basis. Additionally, some firms offer free legal consultations. You may also be able to arrange to pay in manageable installments.
Attempt to Negotiate
Even if you can’t reach a perfect agreement, an attempt at negotiation may move the two of you closer to a mutually beneficial outcome than you would be if neither side spoke to the other. If you are worried about bias, seek a process that involves neutral third parties, such as mediation or arbitration.
Make Sure Details Are in Order
If your spouse contests the divorce by challenging claims you made while filing, you should back up all claims with as much evidence as possible, whether it is financial documents, witness testimony, or photographs. Try to have a preponderance of detailed and organized evidence in your favor.
The more coherent, reasonable, and fact-driven your argument is in court, the better positioned you are to achieve a favorable outcome.
When to Avoid Contesting a Divorce
Just because a couple does not see eye to eye on issues involved in the divorce doesn’t make a contested divorce inevitable. It is always possible to choose an alternate method of marriage dissolution. The following are a few examples of when contested divorce may not be the right path for you.
You Need a Quick Divorce
If you hope to end your marriage sooner rather than later, the contested divorce process is not for you. After months of negotiations and discovery, you will have a trial which is protracted by the number of issues to decide. You will not get a speedy divorce through the contested divorce process.
You Can’t Afford an Attorney
If you are in a position where you cannot afford an attorney yet do not qualify for legal aid or pro bono services, you should do everything you can to avoid going to a trial where you have to represent yourself. In this situation, working to achieve a settlement that is something you can live with is worth the effort.
State Laws Are Unfavorable to You
Depending on state laws, a contested divorce could leave you in a far worse position than you would be if you mediated or reached a negotiated agreement. For instance, some states automatically divide marital property evenly, even if only one partner worked to earn the majority of assets during the marriage. This would be crucial to know if you are the moneyed spouse and want to protect your assets or are a stay-at-home spouse afraid of being left destitute following a divorce.
If research and legal advice suggest a contested divorce will not result in the best outcome, you will likely be better off trying to negotiate.
There Is a Negative Impact on Your Health
Some research suggests that divorce not only directly impacts overall health, but in some cases, potentially shortens one’s lifespan. That does not mean you would be healthier staying in an unhappy marriage. However, it does suggest that a long, hostile and emotionally draining divorce process may do more harm than good. Additionally, a long, contentious divorce can be damaging for your children.
Alternatives to a Contested Divorce
If you want to avoid a contested divorce you have the following options:
- Uncontested divorce You and your spouse submit a settlement or agree on all terms, avoiding a trial, or your spouse simply does not answer paperwork or appear in court
- Mediation You and your spouse meet with a neutral, third-party mediator who helps you resolve all the issues in the divorce so you can then submit a settlement to the court
- Arbitration You agree to have a retired judge or prominent local divorce attorney hear both sides of the case and issue a decision that is binding
- Collaborative divorce You each hire attorneys who agree only to negotiate to an agreement and not to take the case to trial
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Frequently Asked Questions (FAQs)
What is a contested divorce?
A divorce becomes contested when spouses are unable to negotiate the terms of their marriage termination and need one or more items to get decided in court.
What’s the difference between a contested and an uncontested divorce?
A contested divorce means that the couple cannot agree on some or all of the issues related to their marriage dissolution. Meanwhile, an uncontested divorce occurs where one party petitions for divorce, and the other spouse either agrees to all terms or doesn’t respond at all.
How much does a divorce cost?
Due to lawyer and court fees, the average cost of divorce can be between $15,000 and $20,000. But it also depends on where one lives, child custody issues, assets, etc. Not all divorces are created equal, so one could be less or more expensive than the average.
How long does it take for a divorce to finalize?
If a couple can negotiate on all major concerns successfully, a divorce finalizes in a couple of months. The more items that are contested, the longer the process takes.
