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 understand your rights and take appropriate action to protect yourself. Here’s a breakdown of your rights and the steps you can take if you’re going through a contested divorce:
1. Your Rights During a Contested Divorce
- Right to Fair Treatment: You have the right to fair treatment during the divorce process. The court is required to consider both you and your spouse’s arguments and make decisions based on the law and fairness.
- Right to Legal Representation: You have the right to hire an attorney to represent your interests. If you cannot afford an attorney, you may be eligible for legal aid or a public defender, depending on the jurisdiction.
- Right to Participate in Decision-Making: In a contested divorce, you have the right to participate in the decision-making process, particularly if it involves issues like property division, child custody, and support. You also have the right to contest any decisions made by your spouse.
- Right to Property Division: In most jurisdictions, property acquired during the marriage is subject to division in the divorce. You have the right to a fair share of marital property, although the division may not always be equal.
- Right to Custody and Visitation (if applicable): If there are children involved, you have the right to seek custody or visitation, and the court will make decisions based on the best interests of the child.
- Right to Alimony or Spousal Support: Depending on the length of the marriage, the financial situation of both spouses, and other factors, you may be entitled to receive or required to pay spousal support.
- Right to a Trial: If you and your spouse cannot agree on key issues, you have the right to have your case decided by a judge in a trial. The judge will make a final determination on the contested issues.
2. Steps to Take if You Are Going Through a Contested Divorce
- Consult with an Experienced Divorce Attorney: If the divorce is contested, it’s critical to have an experienced divorce lawyer. They will help you understand your rights, offer legal advice, and guide you through the court process.
- Gather Important Documents: Collect all relevant documents that may help support your case. This includes financial records, property ownership papers, tax returns, and any communication or agreements related to child custody or support.
- Understand Your Goals: Determine what your goals are in the divorce (e.g., fair division of property, primary custody of children, reasonable alimony, etc.), and discuss them with your attorney. Having clear goals will help you stay focused during the process.
- Stay Calm and Professional: Divorce can be emotionally charged, but it’s important to remain calm and professional throughout the process. Avoid confrontational behavior, especially when dealing with your spouse or their attorney.
- Consider Mediation: Even in a contested divorce, many couples find it beneficial to work with a mediator to reach an agreement on contentious issues. Mediation can help you avoid a long trial and may result in a more amicable resolution.
- Prepare for Court: If mediation doesn’t work, prepare for trial. Your attorney will help you gather evidence, prepare testimony, and ensure that you’re ready to present your case in front of a judge.
3. Key Issues in a Contested Divorce
- Property Division: If you and your spouse cannot agree on how to divide property, the court will divide marital assets according to the law of your jurisdiction. Some states follow equitable distribution, which divides property fairly but not necessarily equally, while other states follow community property laws, which divide property equally.
- Child Custody and Visitation: If there are children involved, the court will decide custody based on the best interests of the child. This could involve joint custody (where both parents share responsibility) or sole custody (where one parent has primary responsibility). Visitation schedules will also be determined.
- Spousal Support (Alimony): In contested divorces, the court may order one spouse to pay spousal support, depending on factors such as the length of the marriage, the financial needs of one spouse, and the ability of the other spouse to pay.
- Child Support: The court will also determine child support obligations, which are typically based on the income of both parents and the custody arrangement.
4. Defenses in a Contested Divorce
- Disagreement on Property Division: If you disagree with your spouse’s proposed division of property, you can present your own case and evidence to show why a different division is more fair and equitable. You may also challenge the valuation of certain assets.
- Dispute Over Custody: If your spouse seeks primary custody and you disagree, you can argue that you are the more suitable parent for custody. Factors such as your relationship with the children, your ability to care for them, and any negative behavior by your spouse could influence the court’s decision.
- Challenge Alimony or Support: If you believe that you should not be required to pay alimony or that your spouse is entitled to more than they deserve, you can challenge the amount or the need for alimony. You may also argue that your spouse is capable of supporting themselves financially.
- Inability to Pay: If you are being asked to pay child support or alimony, you can argue that you are unable to meet the financial obligations due to a change in your financial situation (e.g., job loss or significant medical expenses).
5. What Happens if You Reach a Settlement
- Settlement Agreement: If you and your spouse reach a settlement on all contested issues, your attorney will draft a settlement agreement outlining the terms of the divorce, including property division, custody, and support. Once signed by both parties and approved by the court, this agreement becomes legally binding.
- Finalization of Divorce: After the settlement is approved, the 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, call witnesses, 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. However, appeals are typically limited to legal errors made during the trial, rather than a reevaluation of the evidence.
