What Is a Contested Divorce? A Legal Overview

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. 

Contested divorce meaning and takeaways

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:

• whether or not to get a divorce
• the reasons for the divorce
• child custody
• child support
• alimony or spousal support
• how to split property or assets 

The benefits of a contested divorce

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:

• Legal resolution of disputes. A contested divorce offers a legal solution for spouses who can’t come to an agreement on key concerns. It ensures that both parties have a chance to present evidence and have their opinions heard by a neutral third party. 
• Formal process with legal representation. Each spouse in a contested divorce typically hires their own lawyer to represent their interests. An experienced divorce attorney can stand up for your rights, provide essential legal advice, ensure appropriate paperwork is filed, and work to help you and your spouse come to an agreement that is aligned with your needs. 
• Court-made decisions. If spouses cannot reach an agreement on divorce terms, allowing a judge to make final decisions can help ensure fair outcomes for both parties. 
• Protection against uncooperative spouses. You may need to pursue a contested divorce if your spouse doesn’t want to get divorced or is concealing assets. One big benefit of a contested divorce is that the court can compel compliance if one spouse doesn’t comply with the terms the couple had previously agreed upon. 
• Handle complex cases. A contested divorce can help spouses who own a business, have substantial assets, or have special circumstances that require legal involvement. 

The drawbacks of a contested divorce

The disadvantages of a contested divorce include the following:

• Time-consuming process. An uncontested divorce means both spouses agree to the conditions of the divorce, and can be finalized more quickly than a contested divorce. The contested divorce process can involve many stages, including discovery, negotiation, and a court trial, and can take months or even years to complete. 
• High costs. Due to their complexity, contested divorces can drag on, and expenses can add up. A prolonged contested divorce can end up costing tens of thousands of dollars.
• Increased stress. The arguments between a couple getting a contested divorce can intensify stress and anxiety for both parties, any children involved, extended family, and mutual friends.
• Public exposure. Contested divorce orders and decrees may be available to the public.
• Unpredictable outcomes. When a contested divorce goes to trial, the judge has the authority to make the final decisions about the divorce terms. Outcomes are unpredictable, and spouses may not necessarily get the ruling they had hoped for, or they may appeal the decision.

7 steps to get a contested divorce

A contested divorce can entail a lengthy process. Here are the seven steps to get a contested divorce. 

Step 1. Consult a divorce attorney

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 differences between contested and uncontested divorce
• fault-based vs. no-fault divorce
• how specific situations (such as spousal misconduct or the existence of a prenuptial agreement) can affect the proceedings

Step 2. File the petition

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:

• Both spouses’ names and contact information
• Verification of residence
• Marriage and separation dates
• The names of any children involved
• The legal grounds for divorce, such as irreconcilable differences or misconduct
• Requests concerning property division, child custody, child support, or alimony
• Requests for temporary orders such as payment of attorney fees, temporary alimony, or child support or custody during the divorce proceedings

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.

Step 3. Serve papers

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. 

Step 4. Receive response from spouse

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. 

Step 5. Discovery phase

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. 

Step 6. Negotiate settlements

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.

Step 7. Go to trial

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. 

Step 8. Attend post-trial motions and appeals

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.

How long does a contested divorce take?

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:

• Complex procedures. Contested divorces require attention to detail and careful planning. It’s important to make sure you abide by legal protocols for each phase of the divorce process. You may need to meet residency requirements, undergo a waiting or separation period, or take certain classes before your hearing. For instance, in Delaware, spouses must be separated for at least six months before the divorce process can begin (unless the divorce is based on misconduct). If children are involved, spouses must attend a parent education class before the court will move forward with the divorce. 
• Court scheduling. If courts are backlogged, court hearings and dates may be delayed. 
• Ongoing negotiations. It can take time to try to come to an agreement with your spouse. For example, spouses may agree to split custody of their children but have trouble settling on a parenting time schedule.

How much does a contested divorce cost?

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:

• Attorney fees. Attorney fees can be significant. For example, according to The Florida Bar’s 2022 Economics and Law Office Management Survey, 85% of polled lawyers in Florida listed an hourly rate of over $275.
• Court fees. Court fees can include filing fees, motion fees, and other expenses and can vary depending on location. For example, in California, the fee for filing for divorce is $435, while in Waukesha County, Wisconsin, the divorce filing fee is $194.50 (with a request for support or maintenance). 
• Expert witnesses. Professional witnesses–such as financial analysts or child psychologists–can be costly. For instance, according to the U.S. Bureau of Labor Statistics, in 2023 psychologists charged a median hourly rate of $44.59.
• Additional costs. The costs of mediation, document preparation, and administrative tasks can add up. For example, in New Hampshire, the cost of divorce mediation is $450 for up to four hours of mediation and one hour of mediation-related administrative duties.

Alternatives to contested divorce

There are a few alternatives to contested divorce, including the following:

• Mediation. A mediator helps the couple try to come to an agreement on divorce terms. 
• Collaborative divorce. With a collaborative divorce, spouses and attorneys can meet together to try to resolve issues one at a time. 
• Uncontested divorce. In an uncontested divorce, spouses solve their disputes on their own.

FAQs

How do I know if contested divorce is right for me?

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.

What do I do if my spouse contests the divorce?

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. 

Can a contested divorce be settled out of court?

A contested divorce can be settled out of court if both spouses participate in negotiations and come to an agreement before trial. 

What happens if my spouse doesn’t respond to the divorce papers?

If your spouse doesn’t respond to the divorce papers, the court may grant you an uncontested divorce. 

Is it possible to appeal a contested divorce judgment?

Either spouse can appeal a contested divorce judgment if they believe a major error affected the outcome of the divorce case.