Contested Divorce Procedures

By Heather Frances J.D.

The exact procedures of divorce vary between states, but divorce can be a fairly simple process if you have an uncontested divorce. For a divorce to be uncontested, you and your spouse must agree on the reason for the divorce and the terms of the settlement, such as property division, child custody and alimony. However, if you and your spouse contest, or dispute, the terms of your divorce -- or the reason for the divorce itself -- the process may be longer and more expensive.

The exact procedures of divorce vary between states, but divorce can be a fairly simple process if you have an uncontested divorce. For a divorce to be uncontested, you and your spouse must agree on the reason for the divorce and the terms of the settlement, such as property division, child custody and alimony. However, if you and your spouse contest, or dispute, the terms of your divorce -- or the reason for the divorce itself -- the process may be longer and more expensive.

Pleadings and Service

Divorce cases begin when one spouse files initial pleadings as required by state law, usually called a summons and complaint. The complaint identifies the reasons for the divorce, along with proposed settlement terms; the summons assigns deadlines for the other spouse. The filing spouse must serve her spouse with copies of the initial pleadings, usually by hiring a process server or sheriff. Most states provide alternatives for service if the filing spouse cannot locate her spouse. The responding spouse has the opportunity to answer the initial pleadings, identifying any terms he disputes.

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Temporary Orders

Since contested divorces may take a long time to resolve, either spouse can ask the court for a temporary, or pendente lite, order to temporarily resolve certain matters until the court issues the final divorce decree. For example, the court can temporarily establish custody, child support and alimony payments to govern the spouses’ conduct until the divorce becomes final. These orders may be adopted into the final divorce decree as appropriate.

Custody

Many states require parenting classes for divorcing parents and when spouses dispute proposed custody arrangements, some states may also require the parents to attend mediation. Even in states where mediation is not mandatory, courts may offer mediation services. Many couples attempt such alternative means of dispute resolution to try to reach agreement on custody -- or other issues. When spouses reach agreement on an issue, a contested case tends to get shorter and less expensive because the court can adopt that agreement into its final order.

Discovery and Trial

If you cannot reach agreement, you and your spouse will typically go through the discovery process during which you each have the right to request certain information from the other. Discovery usually involves written questions or demands for documents, and spouses can require potential witnesses to formally answer questions under oath in a deposition. In a contested divorce, discovery helps the spouses prepare their cases for trial. Courts may require both spouses to attend a pretrial settlement conference to work out the schedule for the trial process or attempt to settle the case before trial. If the spouses refuse to settle, the court will hold a trial to settle all contested issues by receiving evidence from both parties. At some point after the trial, the court will issue a divorce decree outlining the terms of the divorce.

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References

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