What is a Contested Divorce?

What is a Contested Divorce?

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What is a Contested Divorce?

 

Contested Divorces Defined:

 

With a contested divorce, you and your spouse are unable to reach an agreement on issues such as the division of your marital assets, child custody, spousal support etc. In these situations, the litigation process becomes far more complicated and time-consuming. A contested divorce arises, when you and your spouse cannot agree outside of court or before a court on any of the issues that pertain to your filing. 

If you and your spouse engage in a contested divorce you will invariably need to hire a divorce lawyer. In general, the steps involved in a contested divorce include the following:

 

1. Meeting with a divorce lawyer

 

2. Filing a divorce petition and subsequently serving it to your spouse

 

3. After delivery, the spouse is required to respond to the petition

 

4. The Discovery Process commences

 

5. Settlement

 

6. Formal trial

 

7. Post-trial motions

 

8. Appeals

 

 

How do I File a Contested Divorce?

 

1. The first step to filing a contested divorce is to file a complaint or a response. The majority of states in the U.S. utilize forms on which a respondent (spouse who receives service of the petition) can respond to the divorce filing. Filing this document is typically necessary if your spouse challenges (disagrees to provisions) the divorce. This divorce form is time sensitive; however, the original petition and summons must include the date by which the response must be filed. 

2. After the delivery—and subsequent answer—of the response, you and your spouse must attend a hearing. On the response form, the spouse receiving the divorce petition (respondent) may show whether he/she is contesting a specific ground of the divorce (i.e. alimony, custody, adultery, division of assets/debts etc.) If these grounds are formally contested, the matter must go before the court system. If a formal hearing is not scheduled, the respondent may file a motion to show cause and establish it for hearing through the clerk of the court. 

3. The grounds for a contested divorce are somewhat uniform from state to state. The next stage of a contested divorce is to disprove the grounds of the filing. In this stage, you or your spouse may seek a divorce for a variety of reasons described in your state’s laws. The burden of proof is placed on a spouse seeking the divorce. So, for instance, if a divorce is filed on the grounds of adultery, the filing spouse must produce evidence of cheating as it relates to the state’s definition of adultery. Contesting the claim is a matter of providing evidence that substantially refutes or disproves the filing spouse’s evidence. 

4. The next stage of a contested divorce requires you or your spouse to contest the terms of the filing. The majority of states in the U.S.; however, do not possess no-fault divorce laws that do not require specific grounds. Therefore, there are no formal grounds to contest or disagree on the filing. In these matters, or if the responding party chooses to challenge the divorce, a filing may be contested on its terms. For example, if the filing states that the petitioner should be provided with sole custody of the children, the responding party may accept the divorce but fight for custody rights. When specific terms are contested, the filing goes to you and your spouse for private negotiation. 

5. If you and your spouse are on the verge of undertaking a contested divorce, you should seek an alternative dispute resolution. An ADR is a means of settling your divorce terms without having to go to trial. An alternative dispute resolution allows an arbitrator or mediator to consult with both parties—together or separately—to create a suitable compromise. If the parties agree to the terms of the divorce, they may sign a divorce settlement agreement and proceed to make the divorce final. 

6. The last stage of a contested divorce requires the delivery of a judicial determination. If the parties cannot agree to the terms of the filing, the court will formally enter your divorce proceeding. Following the exchange of information, including witness testimonies and a formal review of financial and medical records, the court will determine a formal settlement for you and your spouse. 

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