Contested Divorce Pros & Cons: Is It Right for You?
Updated December 17, 2023
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 attorney 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.
This is why it’s so critical to hire a contested divorce attorney who is very well-versed in divorce litigation and trials — but who also emphasizes resolution and doesn’t try cases just to try cases.
Read: What Is an Uncontested Divorce?
Read: What Is a Divorce Trial?
Understanding Contested Divorce
People (understandably) tend to think that “contested divorce” refers to whether you agree with the divorce or not. As we learned above, that’s not what “contested” means. Whether a divorce is “contested” or “uncontested” refers to whether the spouses are able to reach agreements on the issues with their divorce. In other words, Pat “contests” how Sarah wants child support to work — not the fact that Sarah wants the divorce itself.
So what happens when a spouse doesn’t want to get a divorce? There are non-legal avenues available, of course. You can ask your spouse to withdraw the divorce and, for example, suggest attending couples counseling to try to resolve your relationship issues. Legally speaking, as long as your spouse filed your divorce on no-fault grounds, the court won’t let you unilaterally stop the divorce.
In other words, contested divorce isn’t about contesting the divorce itself. It’s about disagreeing on how to handle the things that need to be decided in a divorce. If you and your spouse do reach a settlement on all the issues in your divorce, it’s an “uncontested divorce.” If you need the court to decide on even one, it’s a “contested” divorce.
Read: No-Fault Divorce vs. Fault Divorce
Read: Definitive Guide to Divorce Jargon
Common Issues in Contested Divorces
Contested divorces can involve a wide range of issues that need to be addressed. Asset division is often a major point of contention, especially in high net worth marriages where the couple acquired significant assets. Your contested divorce attorney will help identify and value marital assets such as property, investments, and businesses, often via experts.
Child custody and visitation rights are another key issue in contested divorces. Your attorney will help you understand the factors that the court considers when making custody determinations, including how judges view a child’s best interests.
Child support and alimony are also common issues in contested divorces. Your attorney will help you understand the guidelines for calculating child support — and when judges deviate from the default child support calculator. Your divorce lawyer will also explain how alimony works and whether the court is likely to see your situation as an “alimony case.”
Read: Divorce in CT: What You Need to Know
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 contested divorce attorney 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 a lawyer 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 contested 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: Uncontested Divorce vs. Contested Divorce
Read: What Is a No Contest Divorce in CT?
How Long Does a Contested Divorce Take?
The duration of a contested divorce can vary depending on a variety of factors, including the complexity of the issues involved, the level of disagreement between the parties, and the court’s schedule. While it’s difficult to predict exactly how long a contested divorce will take, it’s important to be prepared for the possibility of a lengthy process. When a case proceeds to trial, it can take significantly longer to reach a resolution. The court’s schedule, the availability of witnesses, and other factors can also impact the timeline of a contested divorce.
It’s important to have realistic expectations and be prepared for the potential length of a contested divorce. Working with an experienced attorney who can guide you through the process and keep you informed of any developments can help you navigate the process more effectively and minimize delays.
Who Pays for a Contested Divorce?
The cost of a contested divorce can vary significantly depending on the complexity of the case, the attorneys involved, and other factors. In general, each party is responsible for paying their own attorney fees and expenses in a contested divorce. In some cases, one party may be ordered to pay the other party’s attorney fees and expenses. However, these situations are relatively rare, and it’s important to consult with an attorney to understand the potential financial implications of your specific case.
Legal fees can add up quickly in divorce trials. It’s important to be prepared for the potential costs involved and have a plan in place to cover these expenses. Preparing for trial is a lot of work, and you should anticipate significant legal fees. There are also other expenses like expert witness fees, appraisals, and transcripts. Your attorney can provide guidance on the potential costs associated with your specific case and help you explore options for managing the financial aspects of the divorce.
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.
Negotiating a Settlement vs. Going to Trial
In many contested divorces, negotiations between the parties and their attorneys can lead to a settlement agreement. This can be a more cost-effective and less adversarial way to resolve the issues in the divorce. Your attorney will negotiate on your behalf, aiming to secure a settlement that is fair and meets your needs. You are the ultimate decision-maker when it comes to settlement. Your lawyer will provide you with the legal counsel you need to make informed decisions.
However, if you do not reach a settlement, the case will proceed to trial. In this situation, your attorney will represent you in court and present your case to the judge. They will advocate for your rights and work to convince the court to rule in your favor. Going to trial can be a lengthy and expensive process, but it may be necessary to protect your rights and achieve an acceptable outcome.
Strategies for Negotiating a Settlement in a Contested Divorce
Want to turn your contested divorce into an uncontested divorce? Negotiating a settlement in a contested divorce requires careful planning, strategy, and a willingness to compromise on both sides. Here are some strategies to help you navigate the negotiation process and increase the likelihood of reaching a favorable outcome:
- Prepare and gather evidence: Before entering into negotiations, gather all the necessary documentation to support your position on the key issues in the divorce. This can include financial records, property valuations, and any other relevant evidence.
- Identify your priorities: Determine your top priorities and what you are willing to compromise on. By understanding your priorities, you can focus your negotiations on the issues that matter most to you and be more effective in reaching a settlement.
- Stay focused and calm: Emotions can run high during a contested divorce, but it’s important to stay focused and approach negotiations with a calm and rational mindset. This will help you make clear and logical decisions that are in your best interest.
- Consider the big picture: When negotiating a settlement, it’s important to consider the long-term implications. Think about how the proposed settlement will affect your financial situation, your relationship with your children, and your overall well-being.
- Seek professional advice: Work closely with your attorney and any other professionals, such as financial advisors or child custody evaluators, to help you navigate the negotiation process. Their expertise can provide valuable insights and guidance as you work towards a settlement.
Remember, negotiation is a give-and-take process, and it may require multiple rounds of discussions to reach an agreement. By approaching negotiations with a clear plan, a willingness to compromise, and the support of experienced professionals, you can increase the chances of reaching a settlement that meets your needs.
Read: Settlement & Divorce
The Role of Mediation in Contested Divorces
Mediation is often used as a way to resolve disputes in contested divorces. This isn’t the same as using mediation as the process to resolve your entire divorce. When you have a contested divorce, mediation is a tool to try to resolve your case prior to trial (or at least settle some of the issues). In mediation, a neutral third party, known as a mediator, helps the parties reach a mutually agreeable resolution. When we use mediation as a tool to avoid trial in a contested divorce, a retired judge typically serves as the mediator.
Your attorney explain the mediation process and and will serve as you your chief negotiator. They will advocate for your interests and perspective. Mediation can be a valuable tool for resolving disputes and avoiding the need for a trial.
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.
Working With a Skilled Contested Divorce Attorney
In a contested divorce, onboarding the right legal representation is vital. You need a lawyer who:
- Focuses Entirely on Family Law. A contested divorce trial isn’t a time for a jack of all trades.
- Litigates at Court Hearings and Trials. Some family lawyers aren’t contested divorce attorneys. They primarily practice mediation or collaborative law. Other newer divorce lawyers aren’t experienced with final custody hearings or divorce trials given that most cases settle. Consider hiring a lawyer who has previously handled full hearings and trials.
- Emphasizes Negotiation. Being a contested divorce attorney and prioritizing settlement aren’t mutually exclusive. Just as you don’t want a case that settles just because your lawyer isn’t comfortable taking your case to trial, you don’t want your case going to trial because your lawyer isn’t skilled at (or doesn’t like) negotiating.
Your attorney will work diligently to build the strongest case possible on your behalf for both settlement and trial purposes.
Finding the Right Attorney for Your Contested Divorce
In a contested or high-conflict divorce, it is crucial to have a contested divorce attorney 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 contested divorce 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.
The family law attorney you choose will play a significant role in both your experience and the outcome of your case, so it’s important to take the time to find someone who is experienced, knowledgeable, and wants to understand your unique needs and goals.
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 Freed Marcroft’s experienced team of contested divorce attorneys if you have any questions.
