Contested Divorce Pros & Cons: Is It Right for You?
When a couple decides to divorce, it’s emotional. The key to whether a contested divorce is in the cards really comes down to how the spouses manage those emotions. Can they take a breath (or several) and make decisions rooted in their long-term goals? Or does tension escalate quickly and stay that way to the point where they cannot agree on critical issues like child custody, property division, and alimony? This is where a contested divorce comes into play.
While this type of divorce can offer a way for both parties to have their “day in court,” a trial is stressful, unpredictable, and costly in terms of both time and money. So, how do you know if a contested divorce is the right choice for you? In this article, we’ll explain what a contested divorce is, explore the pros and cons of pursuing a contested divorce, and provide you with the information you need to make an informed decision. So read on to learn more, whether you’re considering a contested divorce or simply curious about the process.
What Is Contested Divorce?
A contested divorce is one that goes to a divorce trial. Almost all litigated divorces begin the same way — one spouse serves the other with divorce papers. Whether a divorce will ultimately be “contested” or “uncontested” depends on whether you can reach an agreement on the issues the court needs to order your divorce and dissolve your marriage.
If you can — even if you had a somewhat high-conflict divorce with court hearings throughout (pendente lite) — your divorce will proceed to judgment uncontested. If you can’t, you’ll have a trial where a judge rules on all the outstanding issues in your case.
Remember, it takes both spouses to reach a settlement agreement. If one side refuses to negotiate entirely (which is rare), you won’t be able to have an uncontested divorce. Or, if a settlement proposal is unacceptable and spouses are unwilling to compromise further, you will head to a trial. As you have heard, the vast majority of spouses do manage to reach an agreement, even in the face of extremely different circumstances.
Read: What Is an Uncontested Divorce?
Read: What Is a Divorce Trial?
Pros of Contested Divorce
You’re at a Stalemate
When you’ve tried but simply can’t reach an agreement, a divorce trial is your remaining option. There are two paths to a stalemate. First, one of the spouses refused to even come to the table. Second, the proposal on the table is unacceptable.
When a spouse refuses to negotiate, experienced lawyers have tools to try to get them to engage. Sometimes, though, a spouse simply won’t participate in settlement discussions. In those cases, we put forward the best case possible before the judge.
Having Your Day in Court
One of the main benefits of a contested divorce is that both parties have their “day in court.” This means that each side can present their case and argue their position before a judge. This can be important for those who feel strongly about a judge hearing their perspective.
Supporting Successful Negotiation
It’s bad negotiation strategy to threaten something that you aren’t actually willing to do. You can be too trusting of the other side, but you can’t be too trusted by the other side. That said, in a litigated divorce it is important to have a lawyer with both top-notch negotiation and trial skills. One without the other leads to a problem. For example, if you have a lawyer that is primarily focused on the court process, you will miss key opportunities to resolve your case outside of court. On the other hand, if you have an attorney who rarely litigates or is less comfortable with divorce litigation and trials, the other side may see you as less able to back up your position. In sum, you need a lawyer who understands and can execute both top-notch negotiation and trial strategies. They are interrelated.
Read: How Do I Handle a High-Conflict Spouse in Divorce?
Cons of Contested Divorce
Realities of Having Your Day in Court
First, a cautionary tale about one of the main advantages of contested divorce — the appeal of having your day in court. A divorce trial is like any civil trial. It’s formal and subject to rules of evidence and civil procedure. In other words, not all testimony or evidence can even be introduced at trial. It’s also important to know that what you feel strongly about may not be compelling to the court — and might even distract from or hurt your case. For example, if you are focused on the emotional impact of a spouse who cheated, you may have a distorted view of its significance to the judge. That may result in your lawyer devoting precious, limited court time to an issue that’s unlikely to move the needle in your favor.
Make sure you work with a divorce lawyer committed to telling you the truth about the realities of how Connecticut courts view the issues in divorce — not on how you think they should. In most cases, there are far better places than the courtroom to work through your understandable anger or feelings of inequity.
Read: Don’t Mistake Truth for Weakness; It’s Strength
Cost of a Divorce Trial
A divorce trial requires a significant investment in legal fees. Accordingly, a significant disadvantage of a contested divorce versus is the cost. Your legal team is often both preparing for trial and negotiating simultaneously — which is expensive. Plus, trial preparation itself takes a lot of your attorney’s focus and time. In addition, expert fees, deposition and court reporter expenses, for example, all make divorce trials expensive. As you are weighing the pros and cons, you have to make sure that the potential upsides are with the investment in a trial.
Read: How Much Does a Divorce Cost?
Time
If you don’t already have trial dates, speak with your lawyer about when you think the court might set them. Some divorce courts have more cases than others and schedule further our into the future. Also ask your attorney their opinion on whether your divorce trial is likely to conclude in the number of days the court has assigned. If not, you could have a partially completed trial and then wait for additional dates to which to finish the trial.
Finally, in most cases, the court doesn’t rule on the final day of trial. Judges have 120 days to issue their rulings, so you may be waiting for quite some time. At that point, its also possible that there will be an appeal that further delays things.
Read: How Long Does a Divorce Take in Connecticut?
Emotional Health
Contested divorces can also be emotionally draining. The process can be lengthy and stressful, and it can be challenging to maintain a positive relationship with the other party. This can be especially challenging when children are involved.
Read: Understanding Your Emotions in Divorce
Uncertainty
Another disadvantage of a contested divorce is that the outcome is uncertain. When a judge decides the outcome, there is no guarantee that either party will be happy with the result. In addition, the court may not consider the emotional toll the process has taken on the parties involved.
Read: Control & Divorce
Contested vs. Uncontested Divorce
A contested divorce is one where the spouses don’t reach a full settlement agreement. Instead, they go to a divorce trial where a judge decides. In an uncontested divorce, the spouses reach a resolution outside of court and do not have a divorce trial.
Read: Can I Get Divorced Without Going to Court?
When to Consider Contested Divorce
Contested divorces are not for everyone, and it’s essential to consider all the options before deciding. However, there are situations where a contested divorce may be the best choice.
A contested divorce may be necessary if the other party is unwilling to negotiate. It may also be necessary if they are unwilling to agree to something that’s a dealbreaker for you.
Read: High Conflict vs. Low Conflict Divorce
Factors to Consider When Deciding on Contested Divorce
If you’re considering a contested divorce, there are several factors you should consider before making a decision. These include the:
- Realties of the situation
- Likelihood of success at trial
- Expense of trial
- Emotional well-being of you and your children
- Value of Certainty
It’s essential to weigh all of these factors carefully before deciding. Again, an experienced divorce attorney can help you understand the realities of your situation and your options so you can make an informed decision.
Read: Using EAR Statements to Solve Problems With Your Ex During Divorce
Alternatives to Contested Divorce
Alternatives to a contested divorce may be more appropriate for some couples. These include:
Uncontested divorce: In an uncontested divorce — including via divorce litigation — both parties agree on all the key issues, and the divorce can be finalized without going to court.
Mediation: A neutral third party helps the couple agree on key issues in mediation.
Collaborative divorce: In a collaborative divorce, both parties work with their collaborative attorneys and team to reach an agreement outside of court.
The Legal Process
The legal process for a contested divorce can be lengthy and complex. It typically involves the following steps:
Filing & Serving: One party files a petition for divorce with the court. The other party is served with the petition and has a certain amount of time to respond.
Discovery: Both parties exchange information about their finances and other important issues. In high-conflict, contested divorces, discovery may be more expansive than in a lower-conflict divorce. For example, discovery may go well beyond financial affidavits and written discovery to involve advanced discovery techniques like depositions. In addition, experts like forensic accountants or psychiatric, business, or custody evaluators may be involved.
Negotiation: Even in contested divorces, there are almost always attempts to negotiate a settlement. The parties might attempt private mediation to resolve their differences before trial. The court may also have them try to settle via pretrials or with family services.
Trial: If the parties can’t reach an agreement, the case goes to trial, and a judge decides.
Hiring a Contested Divorce Attorney
In a contested or high-conflict divorce, it is crucial to have a lawyer who possesses both excellent negotiation skills as well as trial expertise. Having only one of these qualities can lead to issues. For instance, if your lawyer focuses primarily on the court process, you might miss valuable opportunities to resolve your case outside of court. On the other hand, if your attorney rarely engages in litigation or feels less confident with trials, the opposing side may perceive you as less capable of supporting your position. To support the best outcome, it is essential to find a lawyer who prioritizes both top-notch negotiation and trial strategies. In addition, you want a lawyer who will communicate with you, and who has a paralegal available to answer your questions when the attorney is in court or negotiating on behalf of other clients.
Read: A Divorce Attorney’s Top Tips About How to Choose a Divorce Lawyer
Next Steps
Divorce is never easy, and a contested divorce can be incredibly challenging. While a contested divorce can offer a way for both parties to have their “day in court,” it can also be stressful and expensive. Therefore, it’s critical to consider all the options and weigh the pros and cons carefully before deciding.
Please contact us if you have any questions.
