A contested divorce is when spouses disagree on significant issues (such as alimony or child custody) and rely on the court to decide their divorce terms.
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Updated on: August 15, 2024 · 9 min read
If you want to get divorced and can’t come to an agreement with your spouse, you might want to consider a contested divorce. A contested divorce provides disputing spouses with a legal process for finalizing divorce terms.
Contested divorces that go to trial are not common. The Court Statistics Project reported that in 2018, about 5% of domestic relations cases (including divorce cases) in the U.S. were trial court cases.
A contested divorce means spouses need help resolving their disputes and may need to go to trial to let a judge decide on the divorce terms.
A contested divorce typically results from disagreements between spouses about major issues such as the following:
The primary advantage of a contested divorce is that it provides a legal remedy for spouses who cannot agree on crucial terms of their divorce. Other advantages include the following:
The disadvantages of a contested divorce include the following:
A contested divorce can entail a lengthy process. Here are the seven steps to get a contested divorce.
The first step in a contested divorce is to consult with a divorce lawyer. An attorney who specializes in divorce can help collect evidence, work towards negotiating a settlement, and defend your rights should the case go to trial.
A divorce lawyer can also answer questions about topics such as:
The next step in the divorce process is to file a divorce petition. A divorce petition informs the court of your intention to divorce.
A divorce petition can include the following information:
Once you have filled out the divorce petition, you can pay the filing fee and submit it (and any other required forms or supporting documents) to your local court. If you can’t afford the filing fee, you may be able to ask the court for a fee waiver.
Keep in mind that some states require spouses to be legally separated for a period of time before they can file for divorce.
Once you have filed the divorce petition with the court, you will need to serve your spouse divorce papers. To serve divorce papers, you must have another adult (the server) deliver a copy of the filed papers to your spouse. After the divorce papers have been served, proof of service must be filed with the court.
If you can’t find your spouse or your spouse is in jail, on a military base, or in another country, you may need to have a specific individual serve your spouse or use an alternate process to deliver divorce papers.
After your spouse has been served, they must respond to the divorce petition. If they don’t respond within the required timeframe (typically around 30 days), the courts may issue you a default divorce and allow you to end your marriage without your spouse’s involvement.
The discovery phase is when you gather information to help you and your spouse reach an agreement or support your case should you go to trial. During the discovery phase, both spouses must exchange essential information with each other. Discovery may involve collecting witness statements, personal information, and financial documents.
Many couples will want to try to negotiate a settlement to avoid a potentially lengthy (and costly) trial.
Mediation is a process that you can use to work toward an agreement with your spouse. During mediation, you and your spouse meet with a mediator –an impartial third party–who works to negotiate a settlement that benefits both spouses. Even if you can’t resolve all of your conflicts through mediation, you may be able to come to a partial settlement. You can then request help from a divorce court to decide on the unresolved issues.
If you and your spouse still can’t come to an agreement after negotiation, you may need to go to trial. During the trial, the judge will look at evidence from both sides and listen to testimonies. The judge will then decide on the disputed issues.
If either spouse wants to request a modification to a court order after the divorce case, they may be able to request a post-trial motions to make changes to certain aspects of the divorce, such as child support or alimony payments.
Either spouse may file an appeal if they believe a legal mistake or factual error influenced the result of the case.
The time required to finalize a contested divorce can range from months to years and depends on a variety of factors.
The following factors can contribute to the duration of a contested divorce:
The cost of a contested divorce depends on the complexity of the case, how long the divorce takes, and whether additional fees apply.
The cost of a contested divorce can include the following expenses:
There are a few alternatives to contested divorce, including the following:
Consulting with a family law lawyer who specializes in divorce can help you make an informed decision about whether a contested divorce is the right option for you. Get connected with an attorney through our online directory.
If your spouse contests the divorce, you should consult with a local attorney. A lawyer can help you figure out what your options are and whether negotiation is possible. If negotiations fail, the lawyer can represent you in court.
A contested divorce can be settled out of court if both spouses participate in negotiations and come to an agreement before trial.
If your spouse doesn’t respond to the divorce papers, the court may grant you an uncontested divorce.
Either spouse can appeal a contested divorce judgment if they believe a major error affected the outcome of the divorce case.
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