Steps In A Contested Divorce

Going through a divorce can be one of the most difficult challenges in one's lifetime—often involving the same type of grief and trauma experienced when a loved one passes away. It's important to take care of yourself, which should involve getting both the emotional and practical help you need to get through this process.

You should understand what the legal process of a divorce looks like. Many divorcing spouses are often surprised to learn that there's more than one "type" of divorce. This article will cover the basics of a contested divorce. If you have specific questions after reading this article, you may want to speak to a local attorney for advice.

What Is a Contested Divorce?

A traditional divorce is what's known as the contested divorce, where the spouses disagree on one, several, or all of their divorce-related issues, such as alimony, property, child support, and/or child custody.

The court also considers a divorce "contested" if one spouse wants to end the marriage and the other doesn't, or if one spouse wishes to file a fault-based divorce, while the other wants to use the state's no-fault process.

An uncontested divorce is when the spouses agree on all the issues and the reasons (or legal grounds) for the divorce. The spouses will present a signed divorce settlement agreement to the court for a judge's approval. Depending on where you live, the court may refer to an uncontested divorce as a "summary dissolution" or a "joint divorce petition."

A contested divorce is usually more time-consuming and expensive than the streamlined uncontested process because it involves more time in court, attorney's fees, and possibly a divorce trial.

Filing the Divorce Petition

Whether you're filing an uncontested or contested divorce, the first step is to complete your official request—also called a "divorce petition" or "complaint," and file it with the appropriate court:

Your petition must include the following information:

• both spouse's names, addresses, and telephone numbers (unless you request the court to keep your information confidential)
• a statement explaining that you meet your state's divorce residency requirements (if any)
• the date and location of your wedding
• both spouse's names before the wedding
• the couple's separation date
• the reason, or legal ground, for the divorce
• the names, birthdates, and social security numbers of any children from the marriage
• whether either spouse needs or expects to need spousal or child support
• the spouse's wishes for child custody, and
• a statement explaining whether the spouses own any marital or separate property.

Bring the original and several copies of your divorce petition to your local court. You'll need to pay a filing fee, which varies depending on where you live. If you can't afford to pay the fee, you can request a waiver through the court. After you file, the clerk will provide you with a certified or official copy of the documents.

You should retain a copy for your records, and then you will need to deliver or "serve" the paperwork on your spouse, which means you must ask or hire a neutral third person to hand-deliver it to your spouse. This is called "service of process."

Every state's divorce petition and service requirements vary, so if you're unsure what your court requires, speak with an experienced family law attorney near you.

Answer and Counter-Complaint

After you serve your spouse with the divorce petition, your spouse will have a certain amount of time to respond to the allegations in it. If your spouse does not respond to your complaint, you can begin the process of requesting a default divorce.

Depending on where you live, the responding spouse usually has between 21 and 28 days to file an official response or answer to the court. An answer does not need to be complex, but it should address each allegation listed in the initial complaint. If the responding spouse has separate allegations, such as requesting alimony or a different child custody request, that spouse must file an answer and separate counter-complaint with the court and serve it on the other spouse.

What are Financial Disclosures?

Financial disclosures are documents that divorcing spouses must complete and exchange with one other. Each state has its own disclosure rules, but most require the spouses to exchange at least the following financial information:

• bank accounts
• mortgage statements and real estate documents
• tax returns
• retirement accounts
• stocks or other investment statements
• paystubs
• business financial statements
• credit card bills, and
• vehicle loan information.

The goal of financial disclosures is to ensure that both spouses have a complete understanding of each other's financial situation during divorce proceedings and before they enter into settlement discussions and/or the judge finalizes the divorce. The information contained in financial disclosures is essential to determining alimony, child support, and property division.

Financial disclosures can feel like a burden, but they're not optional. Failing to provide them will delay your divorce proceedings and result in the judge ordering you to pay fines or your spouse's attorney's fees.

Temporary Hearings and Orders

All divorces take time. Most states have a minimum amount of time that must pass before the court can finalize a case, even if you request a simplified or uncontested divorce. Contested divorces can take years to get through, which means that some spouses could suffer financially, especially in families where one spouse was the primary earner. In other cases, spouses may need help determining a child custody and parenting time (visitation) schedule while the divorce is pending, which can delay things further.

Spouses that need help during the divorce process can file a motion asking the court to act immediately. For example, when the spouses can't agree on custody or visitation, they can ask the court to order a temporary schedule. Once the court creates an order, both spouses must follow it until the judge signs a new order at the end of the divorce process.

It's common for couples to request temporary child support and/or alimony during the divorce process. Less commonly, but still available, some spouses ask the court for a temporary order that directs each spouse to pay certain marital expenses until the judge finalizes the divorce.

Divorce Discovery

Divorce discovery refers to a variety of legal procedures that allow the spouses to formally request information from on another. During a contested divorce, the court will provide a deadline for when each side must begin and end its discovery requests. Not every case will require discovery, but all courts allow it.

Discovery is often the most time-consuming and expensive aspect of a contested divorce because it allows each side to request any of the following:

• depositions (where the other spouse's lawyer interviews you on the record)
• interrogatories (a list of written questions from the other spouse that you must answer)
• request for production of documents (a list of physical documents the other side requests from you, like credit card statements from a specific period), or
• requests for subpoenas (an official request for documents from a third-party, like an employer, or from a spouse after the spouse refuses to produce them voluntarily.)

Once you receive the requested information, you and your lawyer will review it and determine how to proceed in the divorce process.

Court-Ordered or Voluntary Divorce Mediation

The adversarial divorce process is taxing on every family's emotions, so to alleviate that pain, most states offer an alternative to the contested divorce process. Depending on where you live, the judge may require you to attend court-ordered mediation. Other states encourage voluntary or private mediation, where you and your spouse hire a trained mediator, who can help you resolve your contested issues as a way to save time and money during the divorce.

Mediation is a process where both spouses meet with a neutral third-party mediator to try and resolve divorce-related issues. Divorce mediation is usually confidential, which means both spouses can discuss their issues during the meetings without the fear of the other bringing up the conversation later in a divorce trial.

If the couple can agree on some or all the terms in their divorce, the mediator will draft a marital settlement agreement for both spouses to sign and present to the judge. If there are issues that remain unsettled after mediation, the spouses may end up asking a judge to decide those specific matters for them.

What About a Settlement?

At any point during the contested divorce process, the spouses can work together to settle their issues and finalize a divorce settlement agreement. Courts encourage couples to negotiate and try to come up with their own solutions. As long as the divorce settlement terms are fair, and they meet the children's best interests (if any), a judge will usually approve the agreement.

If you present an agreement to the court, you may still need to attend a hearing in front of a judge. Judges require a court hearing to ensure that neither spouse forced the other into the agreement and that both spouses agree to all the terms in the final agreement.

The Divorce Trial

If you and your spouse can't agree on how to resolve your divorce-related issues, you'll need to ask for a divorce trial. During the divorce trial, both spouse's lawyers will call witnesses, present evidence, and explain their case to the judge.

In custody disputes, the court may ask experts to testify and explain why one parent is better suited to care for the children. Divorce trials are expensive and time-consuming, and, in the end, a judge, who is not personally familiar with your family or all of the circumstances of your case, will be the one to create a final order settling all divorce disputes.

The Final Judgment

Once the court finalizes your case, the judge will create a final judgment of divorce, which is also called a divorce decree. Both spouses will receive a copy of the final orders, and both must obey the terms. If you need to change on of the terms in the future (such as custody, for example), you'll need to follow your state's rules for modifying a court order.

The final judgment will include terms for:

• child custody and visitation
• child support
• health insurance
• property and debt division, including allocation of retirement assets
• spousal support, and
• any other issue the judge deems important.

Keep your final divorce decree in a safe place or provide a copy for your lawyer to hold on to for you. You'll need to present your divorce decree if you wish to change your name on your driver's license, Social Security card, or other government documents. You may also need to provide a copy of the decree if you wish to remarry in the future.

If you lose a copy of your divorce judgment, you can request a new one from the court that issued it or file a request with your local vital records department.