Contested Divorce: What is it?

According to the American Psychological Association, about 40-50% of first marriages end in divorce, while the rate for second marriages is even higher at 60-67%. In terms of numbers, approximately 1.27 million people divorced in 2020. However, the number of divorces has been declining over time, with the crude divorce rate falling from 4.00 per 1,000 people in the year 2000, to 2.5 per 1,000 people in 2021. In that year, just 689,308 couples divorced. That year, I was one of them.

About 90% of all divorces are uncontested, but many start as contested, and then the parties eventually reach an agreement. In fact, according to statistics, about 95 percent of all divorce cases in the US are now settled out-of-court.

*Disclaimer: Financial Best Life is a personal finance blog and is not in the business of giving legal advice. The the following post is for educational and informational purposes and should not be considered as legal advice. As always, if you have real questions for your specific situation, consult an attorney.

What is a Contested Divorce?

A contested divorce occurs when one or both spouses do not agree on how to resolve all of the issues that arise during a divorce. These issues often include child custody and visitation, child support, alimony, and the division of assets and debts. If one spouse simply does not agree to the divorce, then it also qualifies as a contested divorce. When these disagreements occur, the case usually goes to trial where a judge makes the final decisions.

While a contested divorce can be emotionally draining and financially costly, it has its benefits. For one, it allows for a thorough examination and discovery of assets, which can be particularly beneficial if one spouse suspects the other of hiding assets. Also, it provides an opportunity for each spouse to argue for their priorities and interests.

On the downside, contested divorces can take a toll on everyone's emotional health due to the prolonged process and adversarial nature. It also tends to be more expensive because of the attorney’s fees and court costs.

And since the final decisions are made by the judge, the final settlement might not align with expectations. Putting it before a judge means you can't control the outcome.

How Long Does a Contested Divorce Take?

The length of a contested divorce varies greatly because it depends on several factors. The more complex the issues involved in the divorce, the longer it may take to resolve. 

If there are significant assets to be divided, multiple properties, or intricate financial arrangements, it can take longer to agree. The length of time can also depend on the willingness of both parties to negotiate in good faith and the schedule of the court. (During the pandemic, for example, many couples were caught in limbo because the court systems were backed up due to the shutdown.)

What Happens in a Contested Divorce

A contested divorce starts with filing a petition for divorce with the court. Known as a complaint or summons, this document outlines the reasons for the divorce and the desired outcome regarding issues like assets division, child custody, and spousal support.

The spouse who files this petition is known as the petitioner.

Once the petition is filed, it must be served to the other spouse who is referred to as the respondent (you'll see dramatic instances of this in TV and the movies, but nowadays lawyers in certain states can be served on behalf of their clients virtually.) This ensures that the respondent is aware of the divorce proceedings and has the opportunity to respond. The respondent must file a response within 20 to 30 days depending on the state. In this document, the respondent acknowledges the divorce petition and states their agreements or disagreements with the claims made by the petitioner.

Following the response, the discovery process begins.

This involves the exchange of information and documents relevant to the divorce. Both parties, with the help of their attorneys, gather evidence to support their claims. This process may involve interrogatories (written questions that must be answered under oath), depositions (formal interviews conducted under oath), and requests for documents.

During or after the discovery process, both parties might enter negotiations to try and settle some or all of the contested issues. Many states require mediation, where a neutral third party assists in facilitating discussions. If successful, a settlement agreement is drawn up and submitted to the court.

If negotiations fail to resolve all disputes, the case goes to trial. Each side presents their case, including evidence and witnesses. After considering all the information, the judge makes the final decisions on all contested issues. The final judgment of divorce is then issued, marking the end of the divorce process.

If you are facing a contested divorce, it's crucial to consult with a knowledgeable attorney who can provide guidance based on the unique factors of your situation.

(For more on how to afford living on your own during a separation or divorce, click here.)

What is an Uncontested Divorce?

An uncontested divorce is where both parties involved can reach an agreement on all aspects of the divorce without any disputes or conflicts. This means that they can agree on issues such as child custody, division of assets and debts, spousal support, and any other relevant matters. Uncontested divorces are typically faster, less expensive, and less stressful than contested divorces. Mediation can help couples in conflict navigate to a resolution without going to court.

One of the key benefits of an uncontested divorce is that it allows the couple to have more control over the outcome. Instead of leaving important decisions in the hands of a judge, the couple can make choices that best suit their individual needs and circumstances. This can be particularly beneficial when it comes to issues such as child custody and visitation, as the parents are often in the best position to determine what is in the best interest of their children.

It's important to note that an uncontested divorce is not always possible or suitable for every couple. In cases where there are significant disagreements or unresolved issues, a contested divorce may be necessary. However, if both parties can communicate effectively and are willing to work together, an uncontested divorce can be a beneficial option that offers a more amicable and efficient resolution to the end of a marriage.

Contested vs Uncontested Divorce

Contested and uncontested divorces share some similarities, such as filing paperwork and engaging in negotiations. However, the main distinction lies in the level of cooperation between the parties. In an uncontested divorce, spouses can reach an agreement without extensive court involvement, often with the help of a mediator or collaborative lawyer. Conversely, in a contested divorce, the spouses are unable to agree, resulting in a more adversarial process.

A few other places where contested and uncontested divorces differ are:

• Uncontested divorces may proceed without legal representation if the spouses have reached a settlement. Contested divorces typically require the assistance of an experienced divorce attorney to navigate the complex legal process and advocate for one's rights.
• Uncontested divorces are typically quicker and less costly as both parties can reach an agreement without extensive court involvement. Contested divorces are generally more time-consuming and expensive than uncontested divorces. 
• Uncontested divorces may be less emotionally intense since spouses cooperate and focus on resolving the legal aspects. In contested divorces, the confrontational nature and disputes over various issues can elevate tensions and prolong the healing process.

Understanding these differences can help you make informed decisions about which approach is most suitable for your situation.

Reasons to Consider a Contested Divorce

Going through any divorce is never an easy process. A contested divorce can be even more challenging and should be avoided, although there are certain instances where parties may want to consider a contested divorce. Here are some common reasons spouses may consider that route:

1. Child Custody

One of the most common reasons for a contested divorce is disagreement over child custody arrangements. Parents may have different ideas about what is in the best interest of the child and may be unwilling to compromise on decision-making authority, visitation schedules, and involvement in the child's life. In these cases, negotiations can become heated, and the court may need to intervene.

2. Division of Assets

Another frequent area of contention in a divorce is the division of assets. When a couple decides to end their marriage, they must determine how to divide their property, including homes, cars, bank accounts, investments, and more. It is not uncommon for spouses to have different ideas about what constitutes fair division, leading to disputes that require legal intervention to resolve.

3. Spousal Support

Spousal support, also known as alimony, is another factor that can lead to a contested divorce. One spouse may believe that they are entitled to financial support from the other but the other spouse may feel that they should not be responsible for ongoing alimony payments.

4. Infidelity

Infidelity is a common reason for the breakdown of a marriage, and it can also lead to a contested divorce. The betrayed spouse may feel anger, hurt, and a sense of betrayal, leading them to seek a divorce and fight for their rights. On the other hand, the spouse who committed infidelity may contest the divorce, hoping for forgiveness or wanting to salvage the relationship.

5. Substance Abuse or Addiction

When one spouse struggles with substance abuse or addiction, it can wreak havoc on a marriage. The non-addicted spouse may feel that they can no longer stay in the relationship due to the negative impact it has on their well-being and the well-being of their children. In these cases, a contested divorce may arise as the addicted spouse may resist ending the marriage or seek to downplay the severity of their problem.

6. Domestic Violence or Abuse

In situations involving domestic violence or abuse, a contested divorce is often necessary to ensure the safety and well-being of the victim. The victim may seek to end the marriage and obtain a restraining order against their abusive spouse. However, the abuser may contest the divorce, denying any wrongdoing or attempting to manipulate the situation. In such cases, it is crucial for the court to carefully consider the evidence and prioritize the safety of the victim and any children involved.

7. Cultural or Religious Differences

Cultural or religious differences can become significant sources of contention in a divorce. When spouses come from different cultural backgrounds or follow different religious beliefs, conflicts can arise regarding the upbringing of children, family traditions, and even the divorce process itself. 

8. Lack of Communication or Trust

A breakdown in communication or trust between spouses can significantly impact the divorce process and lead to a contested divorce. When open and honest communication becomes difficult or nonexistent, it becomes challenging to resolve conflicts amicably. Additionally, if one spouse feels betrayed or has lost trust in the other, it can create an adversarial environment, making it more likely for the divorce to become contested.

It is important to note that while these are common reasons for contested divorces, every divorce case is unique, and multiple factors can contribute to a contested outcome. Seeking guidance from experienced legal professionals can help couples navigate these complexities and work towards a fair resolution.

Do I Need Legal Representation in a Contested Divorce?

Given the complex nature of contested divorces, hiring an attorney is highly recommended. A skilled attorney can help ensure your rights are protected, assist in gathering necessary evidence, and advocate for your interests in court. Without a lawyer, you may find yourself at a significant disadvantage, especially if your spouse hires one.

• It's important to find a lawyer who specializes in family law and has experience dealing with contested divorces. Like, don't hire your Dad's tax attorney just because he's a family friend.
• Look for someone who is communicative, understands your needs, and is willing to work diligently on your behalf. Personal referrals, online reviews, and consultations can help you find the right fit.
• Open and honest communication with your attorney is essential. Be sure you understand the legal process, your rights, and the possible outcomes. Be sure it is someone you feel like you can talk to. Don't hesitate to ask questions or seek clarification about anything you don't understand.

While legal representation can be expensive, it's an investment that can significantly affect the outcome of your divorce. Discuss fees upfront and explore different payment options. Some lawyers offer sliding scale fees based on income, while others may allow payment plans.

The TL:DR

Going through a contested divorce can be one of the most challenging experiences in a person's life. Remember, every situation is unique, so it’s important to seek legal advice tailored to your specific circumstances. With patience, resilience, and informed decision-making, you can navigate this difficult journey and start a new chapter in your life.