Key Takeaways
- A divorce can start out as contested, but spouses might resolve their differences through mediation and negotiation without requiring a judge to intercede.
- The cost of a contested divorce depends a great deal on the complexity of the issues involved, and if and how quickly spouses can reach an agreement on their own.
- A contested divorce doesn’t simply mean that one spouse doesn’t want to get divorced, although that can be a factor if they dig in their heels and refuse to negotiate the terms of parting ways.
How Does a Contested Divorce Work?
A contested divorce is one in which spouses can’t agree on one or more critical factors so a court must decide issues for them. “[Factors] can include whether they’re going to get a divorce, the grounds for divorce, alimony or spousal support, division of marital assets and debts, child custody, visitation and parenting time, child support, and allocation of attorney and expert fees,” lawyer Rajeh A. Saadeh told The Balance by email.
A contested divorce typically unfolds in the following stages, but the stages and their timing may vary based on your state’s rules and your individual case: divorce petition, “pendente lite” motions and temporary orders, case management conference, discovery, and trial.
File Divorce Documents
One spouse must file a complaint or petition for divorce and have it legally served on the other spouse. The receiving spouse typically has 20-30 days to respond, depending on the state. Sometimes that response includes counter-complaints and alimony requests.
The couple then gets down to the nuts and bolts of dividing property and debt by providing financial disclosures. These disclosures give both spouses a clear picture of their finances.
Temporary Orders
After the paperwork has been filed and finances are disclosed, the court will deal with any temporary orders. The order may include details about temporary custody, visitation, child support and other financial support while the divorce case goes on.
Case Management Conference
Once temporary orders are complete, you’ll typically have to attend a case management conference (CMC) between you, your spouse, your lawyers, and the judge. The purpose of the meeting is to see how the progress is going and adjust dates, deadlines, and other factors to keep the case moving forward as smoothly as possible. The judge may schedule another case management conference, send the case to mediation, or move forward with a trial.
Note
Contested divorces are more common after marriages that have lasted more than five years because couples have had more time to accumulate debt, property such as homes and retirement accounts, and to have children.
Discovery
After your CMC, you usually enter the discovery phase. This is the period of time during which the spouses can ask for information from each other via document requests, depositions, and other methods.
In some states such as Florida, you’ll need to attend a mandatory mediation meeting, at which the hope is you and your spouse will reach some sort of agreement or settlement.
At any point during this step or other steps, the two spouses can agree to a settlement to shorten the process.
Trial
A court hearing will ultimately be scheduled if spouses can’t reach an agreement on all issues. They’ll appear before a judge, who will hear the facts of the case and decide any outstanding matters for them. The judge will issue a divorce decree that will detail how your financial assets are split up, and determine custody parameters if children are involved. Additionally, some states will require parenting classes and custody mediation if children are involved. Spouses can appeal the judge’s decision.
Note
Your contested divorce process may also require appraisals of assets such as your home and, in some cases, expert testimony about those assets.
An Example of a Contested Divorce
Let’s say that Michael and Jim have been married for 10 years. They own their home and have 20 years remaining on the mortgage. They have two children. Michael wants to keep the marital home and live there with their children. Jim has no problem with their children living with Michael and will make do with weekly visitation with the kids. But Michael can’t afford to buy Jim out of the equity in their home, so Jim insists on selling it.
The issue will eventually go to court if they can’t reach a resolution about the home’s equity, and the judge will decide the matter. If Michael can’t afford to buy Jim’s marital interest in the home, the judge might order that the property be sold, or might award Jim a disproportionate amount of other property to balance things out, such as full ownership of all marital retirement accounts.
Pros and Cons of a Contested Divorce
Pros Explained
- A dispassionate third party will decide the facts and the outcome: “The pro of a contested divorce is that any and all issues in dispute are presented to a judge for adjudication,” Saadeh said, “so you know how your case will end up and you don’t have to wonder what would have happened if you didn’t settle.”
- A contested divorce can be appealed on certain grounds: You can appeal a divorce judgment under certain circumstances, such as if you can prove that the judge didn’t apply terms of law correctly or failed to resolve everything that was in dispute.
Cons Explained
- Contested divorces can be expensive: Retaining an attorney can cost a great deal. For example, the average cost of a divorce in Illinois is $11,000 to $14,000. The cost of your contested divorce will likely vary based on where you file, how long your case takes, and how complex it is.
- You’re entrusting critical terms of your life to a stranger: “When spouses settle their divorce, they do so on their own,” Saadeh said. “They don’t allow their matter to get decided by a stranger in a black robe, often arbitrarily, albeit under the law, which gives family court judges a lot of discretion in how best to decide issues in a contested divorce.”
Contested vs. Uncontested Divorce
| Uncontested Divorce | Contested Divorce |
|---|---|
| Spouses agree on all major issues. | Spouses can’t reach an agreement on at least one issue. |
| Spouses sign a comprehensive marital property settlement and submit it to the court for incorporation into a decree. | Spouses appear in court for a trial, where a judge decides any outstanding issues. |
| The divorce can be resolved relatively quickly. | A divorce trial can drag on for many months. |
| The marriage can be terminated for minimal cost. | It can be quite expensive due to the necessity of hiring attorneys, appraisers, and other experts. |
All major issues don’t have to be agreed on all at once for a divorce to be uncontested. Spouses can spend months negotiating and mediating a resolution of their marriage rather than go to court.
In either case, the terms of the divorce are incorporated into a judgment or decree, such as the marital settlement agreement or the terms of a judge’s decision.
You may still have to pay appraisers and experts to nail down the facts of the case in an uncontested divorce, but you won’t have to pay them to testify or submit formal reports.
An Alternative to Contested Divorce
A divorce can begin as a contested litigation, but this doesn’t mean that it has to end with a judge ordering a resolution of all matters.
Spouses can take the much cheaper approach of having a settlement agreement drawn up and signed and submitted to the judge for incorporation into a decree, whether it covers all issues or just a handful that they concur on. Spouses can reach a partial settlement and leave only one matter for a judge to decide, reducing the immense cost of a highly contentious contested divorce. In fact, state divorce laws are often set up to encourage this. They order mediation as part of the contested divorce process.
Frequently Asked Questions (FAQs)
How long will a contested divorce take?
It could take several months to a year to resolve a highly contentious case. The discovery process of a contested divorce and pinning down the facts regarding all debts and assets is typically what takes up the most time.
How much does a contested divorce cost?
Costs can depend on how many issues must be investigated and litigated. Some states, such as North Dakota, allow you to file a “pauper’s affidavit” to at least waive the court fees if your divorce creates a financial hardship. And in some cases, attorney fees can be awarded in your divorce decree.
Can a contested divorce be withdrawn?
Spouses can always withdraw a divorce complaint if they decide they want to stay together, and they can enter into a marital/property settlement agreement resolving outstanding issues at any time so a judge doesn’t have to intervene and decide these matters for them.
What is the outcome of a contested divorce?
The outcome of a contested divorce is simply a judge’s decision as to how all contested issues, such as the division of marital property, should be resolved according to the terms of state law.