The legal term “contested,” by definition, is when the two parties in a divorce cannot come to an amicable agreement. It is one of the most common types of divorce. In these cases, litigation is often drawn out.
When neither party can come to a satisfying conclusion, they have to hire a mediator. The alternative option is to appear before a court, who would solve any issues that they were not able to come to.
There are various steps involved in a contested divorce, which we will explore below.
Meeting with Your Attorney
After you have started the process of screening attorneys, you can then pick the one you feel suits your situation best, after which they will interview you.
During your interview, your attorney will ask you to collate all divorce documents relevant to the case. These include things such as assets of the marriage, children and anything else that may be of significance.
After that, your attorney we work out what you are entitled to, and then start the process of building your divorce petition and filing it with the court.
This requires a lot of work, as it is your responsibility to make sure you have everything that is necessary. You should also work out what you would like your attorney to ask for in the petition. Areas to think about include child custody, assets and marital debt.
Also, make sure you read and retain all copies of the paperwork that your attorney files with the court.
Serving a Petition
After your petition has been filed at the court, a petition will then be served to your spouse. This petition can be served to your spouse in person, by mail or by the sheriff.
If you cannot find your spouse, a notice for their appearance will be published in the local newspaper, after which you will have to wait a certain amount of time before litigation can continue.
In the majority of jurisdictions, courts have a responsibility to make sure your spouse is served with the petition. A process server or the sheriff’s deputy will do this.
You may have to seek additional guidance, too – your attorney can show you the best way to give your spouse this notice if the responsibility lies on you.
Response from Your Spouse
Your spouse will need to respond to your divorce request within 30 days. If your spouse fails to do so, you are entitled to a default divorce judgement. This means that your case continues on to the discovery and settlement stages of litigation.
Going Through Discovery
During the discovery phase of the divorce process, spouses can get in-depth information about one another. This information is acquired by written request and deposition. Also during this phase, spouses can ask for temporary child support or alimony.
The information requested during discovery is also subject to a time limit. It is common for spouses to draw out the process by missing deadlines or even to allow for time to hide assets. It is good practice to make your attorney keep your spouse in check if you suspect they are being disingenuous.
Many judges prefer to see spouses reach an amicable agreement before the last court date.
This can include motions such as mediation, where each side is sat down with a third party who helps to solve troublesome issues. If this doesn’t work, then discovery will continue and the case will reach court.
During the trial, the sides ware able to utilise witnesses, as well as cross-examining the other side’s witnesses too. The amount of divorce cases currently being handled will determine how quickly your case sees trial. The judge will listen to perspectives from both sides before reaching a conclusion.
How details your case is will affect how long it takes for the judge to complete a final order. You can also have your attorney call witness during trial. These include character witnesses, or perhaps custody witnesses to help prove children would be better off with yourself.
After the resolution of the trial and the judge has completed his order, either side can make use of a post-trial motion prior to the final judgement. Parties have up to 30 days to file this motion – the other party also has 30 days to respond. Post-trial motions can be used to build argument against the judge’s ruling
If motions are denied, then appeals can be filed. These have to be submitted within 30 days of the final judgement or 30 days after the post-trial motion. A few months are allowed to file an appeal with the lower court, with the other party getting a month to respond.
After the appeal, the court will make its final decision. In the event that the appeal is successful, the case will be sent back to trial for further proceedings.
Understanding the Role of Contested Divorce
A contested divorce can have many components to it. Truly having an understanding of how contested divorces work is the key to overcome any hurdles during a dispute between you and your spouse.