In a contested divorce, where you and your spouse disagree on one or more issues (such as property division, child custody, alimony, or spousal support), it’s important to know your rights and the steps you can take to protect yourself. Here’s what you need to understand:
1. Your Rights in a Contested Divorce
- Right to a Fair Process: You have the right to a fair and impartial process. This means that the court should consider both your and your spouse’s positions on issues like asset division, custody, and support.
- Right to Legal Representation: You are entitled to an attorney who can represent your interests. If you cannot afford an attorney, in some jurisdictions, you may be able to qualify for legal aid or a public defender, especially if child custody or spousal support is in dispute.
- Right to Property Division: In a contested divorce, the court will determine how property should be divided between you and your spouse. The law requires that property be divided fairly (and in some states, equally), based on various factors including the length of the marriage, contributions of each spouse, and other considerations.
- Right to Custody and Visitation (if applicable): If children are involved, you have the right to seek custody or visitation, and the court will determine what is in the best interests of the children. This may include joint or sole custody arrangements.
- Right to Alimony/Spousal Support: You may be entitled to or required to pay alimony or spousal support depending on the specifics of your case, such as your financial situation, the length of the marriage, and your spouse’s ability to support themselves.
- Right to Challenge Claims: You have the right to challenge any claims made by your spouse during the divorce process, whether they relate to property, alimony, custody, or other matters.
2. Steps to Take in a Contested Divorce
- Hire an Experienced Divorce Lawyer: If the divorce is contested, it’s critical to have an experienced family law attorney who can guide you through the process. A lawyer will help you understand your rights, negotiate settlements, and advocate for your interests in court if necessary.
- Gather Documentation: Start organizing all relevant documents, including financial records, property deeds, tax returns, bank statements, and communication with your spouse. This will be crucial in property division, support, and custody disputes.
- Stay Organized: Keep a detailed record of any interactions with your spouse or their attorney. This includes emails, messages, phone calls, and notes from meetings. This will help if there are disputes about what was agreed to or discussed.
- Work on a Settlement: Even in a contested divorce, many couples are able to reach a settlement through negotiation, mediation, or collaborative law processes. A settlement can help you avoid the time and cost of a lengthy trial. Discuss potential settlement options with your attorney.
3. Key Issues in a Contested Divorce
- Property Division: If you and your spouse cannot agree on how to divide assets and debts, the court will make a decision based on the laws of your jurisdiction. Many states use equitable distribution laws (property is divided fairly, though not necessarily equally), while some states use community property laws (property is divided equally).
- Child Custody and Visitation: If children are involved, the court will prioritize the best interests of the child when making custody and visitation decisions. Factors include the child’s relationship with each parent, the ability of each parent to care for the child, and the child’s own preferences, depending on age.
- Spousal Support (Alimony): In cases where one spouse is financially dependent on the other, the court may order spousal support, taking into consideration factors like the length of the marriage, the financial and non-financial contributions made by each spouse, and the recipient spouse’s financial need.
- Child Support: If there are children, the court will also determine child support, which is typically calculated based on the income of both parents and the custody arrangement. Child support is intended to ensure that both parents contribute to the financial well-being of the child.
4. Defenses and Arguments You Can Use in a Contested Divorce
- Challenge the Grounds for Divorce: In some cases, a divorce may be contested on the grounds. You may dispute your spouse’s allegations regarding fault-based grounds (such as adultery or cruelty), especially in no-fault divorce states, where the reason for the divorce doesn’t have to be proven.
- Dispute Property Valuations: If there is a disagreement over how much property is worth or how it should be divided, you can hire an expert, such as an appraiser, to provide a more accurate valuation and support your position.
- Dispute Custody Arrangements: If your spouse is requesting custody, but you believe you should have primary custody, you can argue that you are the more capable parent. This can include presenting evidence of your relationship with the children, your ability to meet their emotional and physical needs, and any negative behavior by your spouse that may affect the children.
- Challenge Support Obligations: If you are being asked to pay alimony or child support and you believe the amount is unreasonable or that you are not financially capable, you can argue that the amount should be reduced based on your ability to pay.
- Show Financial Independence: If you are being asked to pay spousal support, you may present evidence that your spouse is capable of supporting themselves financially, or that their financial needs are not as great as they claim.
5. What Happens If You Reach a Settlement
- Settlement Agreement: If you and your spouse reach an agreement on all contested issues, your attorney will draft a settlement agreement that outlines the terms of the divorce, including property division, custody arrangements, and spousal support. This agreement must be approved by the court, and once it is, it becomes legally binding.
- Finalization of Divorce: After the settlement agreement is approved, a judge will issue a divorce decree, which officially ends the marriage and enforces the terms of the agreement.
6. What Happens If the Case Goes to Trial
- Trial Process: If you and your spouse cannot reach a settlement, the case will go to trial. Both sides will present evidence and argue their case before a judge, who will make a final decision on the contested issues.
- Appeals: If you disagree with the court’s ruling, you may have the option to appeal the decision to a higher court.
