New York Contested Divorce Frequently Asked Questions

A divorce will be contested if the parties are unable to negotiate settlement terms on their own or with the help of a mediator, and as a result must have a judge resolve the issues through divorce litigation. The issues that are commonly at the heart of the disagreements include child custody, division of property, debt allocation, and alimony.

A contested divorce is basically one party suing the other, and like any litigation, that can involve discovery, calling witnesses, making motions, introducing documents into evidence and testifying before the court. But when it comes to divorce, people usually settle before they get to trial.

The process of a New York contested divorce typically follows these steps:

• One party files for divorce
• The party who filed serves the divorce papers on the other party. If process cannot be served, perhaps because the whereabouts of the second party are unknown, the court can approve service of the divorce notification by alternative process such as publication.
• The second party responds
• There is a request for judicial intervention in order to get the divorce on the court’s calendar
• Before the preliminary conference, the judge or clerk meets with the two sides to determine what issues they agree to and what issues may go to trial.
• In the preliminary conference, a judge will typically encourage the parties to resolve as many issues as possible. If there are unresolved issues at the end of the conference, a discovery schedule will be set up and a trial date set. The trial date is normally within a year, but it can be longer if the case is complicated.
• The judge may make temporary orders of alimony, child custody, child visitation and child support.
• Discovery takes place so each side can ask questions and get answers regarding contested issues.
• Very few cases actually go to trial, so the case will probably settle before trial.
• If the defendant party does not answer, the party who filed for the divorce can move for a default judgment. Otherwise, if the parties do not settle, they go to trial.

If you work out an agreement on issues that are central to divorce in a prenuptial or postnuptial agreement, the judge will normally follow the terms of that agreement unless one of the parties challenges it. Of course, prenuptial and postnuptial agreements do not necessarily cover all issues, but having an agreement ahead of time on at least some issues can go a long way toward avoiding a contested divorce.

Contested divorce can take several months or even a year or more. You are subject to the court schedule, and there is a lot to cover, including minute financial details of income and property. For example, valuation of property may involve each party calling in experts for appraisals. Issues around children, of course, are emotional and stressful, and do not lend themselves to quick resolution when parties don’t agree.

Contested divorces are usually much more expensive than uncontested ones, because they require all the time and costs necessary to prepare for and undertake litigation.

If a couple does not agree on all issues but wants to try to work out their differences, they could use the collaborative divorce process. Unlike the adversarial nature of a contested divorce, in collaborative divorce, the parties work together toward a solution with the help of their specially trained collaborative divorce attorneys. The goal is to have an uncontested divorce. If the collaborative process does not work, the couple can always get a contested divorce, although they will be required to use different attorneys should they move forward toward trial.

If a divorce is uncontested that means that the couple has agreed to the terms of the divorce settlement, including child custody, alimony, child support, debt allocation, and division of property. As a result, the process will be streamlined, and the couple will not have to go before a judge to have their issues resolved. Typically, the judge will simply sign off on the settlement and grant the divorce.