Contested Divorce

A contested divorce means initiating a court process. In many situations, while both parties feel that the marriage is no longer working, typically one party is more willing to embrace change than the other. The advantages of initiating a contested divorce include the requirements of both sides to participate; it creates deadlines; and it provides tools to obtain financial and other information.

The process starts by filing a petition with the court. The other side is notified. They may be notified by being served with a summons from a process server or the other spouse may be given an opportunity to acknowledge service.

If there is uncertainty regarding parenting schedules and finances, then the court may conduct a temporary hearing to resolve those issues. In the meantime, each side gets to discover financial and other information needed to determine support, assets, and debts, and to anticipate what evidence the other side may present in the event the matter goes to trial.

Most cases get settled before it goes to trial. After there is a full financial disclosure, the parties schedule and attend mediation. Most judges understand that they don’t have as much insight into a particular marriage dynamic as the parties have. Most judges cannot afford to take the time to fashion a unique solution to the conflicts that arise between the parties. Accordingly, before a Judge conducts a final divorce hearing, it is typical to require the parties to attend mediation.

Mediation is not a trial and the mediator is not a judge. However, the mediator is neutral and impartial. They do not take sides. Instead of the parties using their attorneys to send settlement offers back-and-forth by mail or email, it is more effective for everyone to meet in the same building at the same time, in two separate rooms, and have a mediator facilitate the settlement process.

The mediator may become an agent of reality and separately give each side some realistic scenarios of terms that would be acceptable, albeit painful, to both sides. No one wins everything that they want whether it is at mediation or at trial. Mediation is a give and take process.

The advantages are saving time and money, easing hostilities and avoiding the uncertainty of having a total stranger (a judge) make decisions on everything that the parties hold dear, such as future living arrangements of your children, paying or receiving support and giving up or keeping certain assets or debts.

If the parties are both represented, and they reach an agreement at mediation then they will sign a binding mediation memo. After mediation one of the attorneys will draft a formal set of settlement documents. Once they are signed by both parties the case may proceed as an uncontested divorce.

When an offer made by one party at mediation or through negotiation is the other party’s worst-case scenario, there is no incentive to settle. Some people refuse to negotiate reasonable outcomes. They don’t see or care about the cost and the risk of trying a case.

In the courtroom, a couple surrenders all power as paid strangers make life-altering decisions for parties and families in pain. However, there is no alternative to trial when one or both of the party’s settlement positions are so far removed from likely outcomes at trial. In that scenario, a litigant is better off letting a judge decide the outcome rather than accept the other spouse’s unreasonable demands that have a small likelihood of success at trial.