What Does Contested Mean in Divorce?
To contest something means to oppose, challenge, or dispute it.
A contested divorce is any divorce in which the parties do not agree on all issues to conclusively terminate the marriage. If there is any issue that one of the parties disputes, the divorce becomes a contested divorce.
Now that we have the contested divorce definition, let us take a look at what can be contested and why you would engage in a contested divorce.
These are the 5 Key Areas usually seen in a highly Contested Divorce:
1) Child Custody
If you and your spouse disagree on how to handle the custody of your children, you have a contested divorce. Custody disputes can be lengthy as the judicial branch will weigh both parties’ ability to raise the children before deciding what they think would be best for the children.
The days and hours of visitation can be contested as well. In the contested divorce scenario, the two parties need to come to an agreement on who will be the primary caretaker of the child(ren) and how much time and money will be expected from each parent in regards to raising the children.
The goal is to find the best solution for your children. As long as that remains the top priority, the resolution could come quickly. However, you can’t control your spouse and they may not agree or see things the same way.
Custody matters are frequently contested and one of the more likely issues to go all the way to a trial. These types of cases also deal with sensitive and costly issues such as domestic violence, substance abuse issues, or mental health issues.
2) Child Support
Typically, the issue of child support is closely tied to child custody. If there is a disagreement on custody, there will likely be a disagreement on child support. The parent who will have more time and responsibility with the children will be owed child support from the parent who will be spending less time with responsibility for the children.
Child support is calculated based on the guidelines, which is a simple enough matter. Where child support gets very contested is determining what numbers go in the worksheet: How much is input for income if you are self-employed? Unemployed? Receiving income from your parents? What is reasonable for daycare going forward? Should someone get credit for a private school? Who carries the health insurance? Is a deviation appropriate?
3) Distribution of Assets
Determining the distribution of assets can be a complex process if one does not have a prenuptial agreement stating how assets would be divided in the event of a divorce. The more assets a couple has, the more likely it is to have a disagreement on how to appropriately divide them. Small businesses and situations with large disparate incomes (for example, a stay at home spouse making $0 and a CEO making $500,000) are typically the most contested areas with assets.
You also see many arguments involving property that was acquired before the marriage. An example of this would be a home bought by a spouse before marriage where both parties lived while married. A prenuptial agreement can help avoid many of the issues that arise in the distribution of assets in a divorce. Sometimes prenuptial agreements are not enforceable though, which causes a whole other set of problems.
4) Allocation of Debts
If the couple has accrued any debts, this can certainly trigger a contested divorce. Dividing the debts appropriately is an issue that will take into account many factors, and perhaps an outside party, to come to a resolution. This becomes more complicated if one or both parties need to seek relief in bankruptcy.
Other issues come where parties had debt before marriage but it was not paid down equally. For example, both parties had student loans before the marriage that are separate but they agreed to prioritize paying one spouse’s loans faster because of a higher interest rate. Like with the distribution of assets, this issue is resolved easier with a prenuptial agreement in place. Without one, this issue can escalate the hours and energy of the legal battle. This is especially problematic for professionals who have a large graduate loan debt or periods of low earnings early in a career, like lawyers, doctors, dentists, and veterinarians.
5) Alimony or Spousal Support
A hotly contested issue in divorces is alimony. How much does one spouse deserve? If either spouse disagrees on the amount of money in the alimony, a contested divorce will ensue. Providing financial support to a former spouse after the dissolution of the marriage is an issue likely to get contested.
If one spouse requests a large amount of financial support this issue could take significantly longer to settle. It is worth contesting the issue though if your spouse is requesting a significant sum of money in alimony. The higher cost of the divorce would be quickly offset by the savings from a smaller alimony settlement. The most contested matters are lifetime alimony cases. It is hard for people to effectively plan that far ahead. Committing to pay a large sum for life or committing to receive only a specific amount for life not knowing what your future holds, in terms of remarriage or physical health, can be very scary.
What constitutes an Uncontested Divorce?
To have a simple, streamlined, and inexpensive divorce, all of the above issues must be resolved without the filing of a lawsuit prior to signatures on the necessary settlement documents. If the two parties agree to all terms without judicial assistance, they have an uncontested divorce. You still have to file your divorce and may still have to appear before a judge for the final hearing. The hearing happens after you and your spouse have signed off on your Marital Dissolution Agreement and Parenting Plan in an uncontested divorce. Uncontested divorces are only done on irreconcilable differences.
While an uncontested divorce may be the easier, less costly route, it may not be the best choice for you. In many situations, it takes a contested divorce to adequately resolve the issues of assets, debt, children, and alimony. To decide which option will be best for you, it’s wise to consult an attorney.
Another Option: Collaborative Divorce & Mediation
If you and your spouse don’t agree on everything regarding the divorce so an uncontested divorce is not an option, but you don’t want to go into a legal battle, you may want to consider avoiding the adversarial court process.
One way to do this is a collaborative divorce where the divorce will be stayed while you work through a collaborative process with multiple professionals, such as lawyers, financial planners, mediators, and mental health professionals, to separate from one another in a healthy and non-adversarial way. This is especially beneficial for persons with issues that can breed resentment when litigated, such as long-term alimony where you have children and will be co-parenting together for the rest of your lives.
If you and your spouse are on good terms but just haven’t worked out the minutiae, consider mediation.
Mediation can serve as an expedited and less exhausting way to resolve any issues regarding the divorce. A mediator may be able to knock out all the small issues and help make sure you covered everything in your agreement. Then, you will be able to take this agreement to an attorney to have it drafted as an uncontested divorce.
What does contested mean when it comes to divorce? It means any divorce that isn’t agreed upon right out the door with all the issues resolved that are needed to dissolve the marriage. Just because it is contested does not mean your divorce needs to be nasty or cost-prohibitive. There are many topics that can cause a contested divorce and we’ve outlined a handful of the most common. If you have any questions about your specific situation, please contact us so we may provide consultation regarding your situation.