Going through a divorce is tough, but it gets even more challenging if you disagree with your spouse’s terms. If you’re wondering how to contest a divorce, you’re in the right place. We’re breaking down the key steps to contest a divorce and giving you some practical advice on what happens in a contested divorce so you can protect your rights.
What Does It Mean to Contest a Divorce?
A contested divorce happens when you and your spouse can’t agree on major issues like dividing property, child custody, or spousal support. If you decide to contest the divorce, you’re basically saying, “I don’t agree with what my spouse is asking for.” This often means going to court to settle disagreements, which can be a long process.
How to Contest a Divorce: Step-by-Step Guide
If you’re looking to contest a divorce, the process can be complex and challenging. It involves legal paperwork, collecting evidence, and possibly even going to trial. To help you navigate this process, we’ve broken it down into detailed steps, including specific statutes from New York and New Jersey to back up each action you may need to take.
1. Know Your Rights and Options
Before you take any action, it’s crucial to understand your rights. Divorce laws vary by state, so it's essential to know how they apply in your situation. If you live in New York or New Jersey, there are specific rules you need to be aware of.
Understanding Divorce Grounds
New York: Under Domestic Relations Law (DRL) § 170, you can file for divorce on both fault and no-fault grounds. Fault-based grounds include adultery, abandonment, and cruel treatment. For a no-fault divorce, you need to prove that your marriage has been irretrievably broken for at least six months.
New Jersey: According to N.J.S.A. § 2A:34-2, New Jersey also allows both fault (like extreme cruelty or adultery) and no-fault (irreconcilable differences) divorces. For irreconcilable differences, your marriage must have been broken for at least six months.
Why Consult an Attorney?
A family law attorney can help you understand these laws, protect your rights, and guide you through the process. Here are a few benefits of consulting a lawyer:
Assess your case: An attorney can help you understand your chances of success.
Strategize effectively: They can suggest strategies to contest issues like child custody or property division.
Ensure compliance: They will help you meet important deadlines and avoid costly mistakes.
2. File a Response to the Divorce Petition
When your spouse files for divorce, you’ll receive a legal document called a divorce petition. If you don’t agree with what’s in the petition, you’ll need to respond formally to contest it.
Key Deadlines to Respond:
New York: According to CPLR § 3012, you generally have 20 days to respond if served within the state. If served outside of New York, you have 30 days.
New Jersey: As per N.J. Court Rule 4:6-1, you have 35 days to respond and include any counterclaims. Missing this deadline can lead to a default judgment.
How to File a Response:
Review the petition: Carefully read through each point to understand what your spouse is asking for (like alimony, custody, or property division).
File an answer and counterclaim: Use your response to agree or disagree with specific points. You can also include a counterclaim if you have your own requests.
Submit your response: Make sure to file it with the court before the deadline.
Common Questions:
What happens if I miss the deadline?
A default judgment may be issued, which could grant your spouse everything they’re asking for under CPLR § 3215 (NY) or N.J.S.A. 2A:34-23 (NJ).
Can I change my response later?
Yes, but you’ll need the court’s permission. You can amend under CPLR § 3025 (NY) or Rule 4:9-1 (NJ).
3. Collect All the Evidence You Need
To contest a divorce successfully, you’ll need strong evidence to back up your claims, especially if you’re disputing issues like custody, property division, or support.
What Evidence Should You Gather?
Financial Records: Tax returns, pay stubs, bank statements, and retirement accounts.
Communication Logs: Emails, text messages, and social media posts that support your claims.
Property Documents: Deeds, car titles, and mortgage records.
Child-Related Evidence: School records, medical documents, and any evidence related to your child's well-being if you’re disputing custody.
Statutory Requirements:
New York: CPLR § 3101 requires full disclosure of all relevant information.
New Jersey: Under N.J. Court Rule 4:10-2, both parties must provide the necessary documentation.
4. Try Mediation First
Before heading to trial, many courts encourage mediation to resolve disagreements. This is where a neutral third party helps you and your spouse come to an agreement. It’s often less stressful and cheaper than going to court.
How Mediation Works:
New York: Mediation is encouraged under DRL § 236 for issues like property and custody.
New Jersey: Often required for custody disputes as per N.J. Court Rule 1:40-5.
Benefits of Mediation:
It’s usually quicker and less expensive than a trial.
Mediation is confidential, so details aren’t made public.
It allows for creative solutions that might not be possible in court.
5. Prepare for the Discovery Phase
If mediation doesn’t resolve the issues, you’ll move into the discovery phase, where both sides exchange information. This is your chance to gather all the evidence you’ll need for trial.
Discovery Methods:
Depositions: Formal interviews where you or your spouse answer questions under oath (CPLR § 3113 in NY, Rule 4:14 in NJ).
Interrogatories: Written questions that must be answered truthfully (CPLR § 3130 in NY, Rule 4:17 in NJ).
Subpoenas: Used to request documents from third parties (CPLR § 2301 in NY, N.J.S.A. 2A:84A-21).
6. Go to Pre-Trial Hearings
If discovery doesn’t resolve your issues, the court may schedule pre-trial hearings to try and settle any remaining disputes before trial.
What to Expect:
New York: Pre-trial procedures are covered under CPLR § 3404.
New Jersey: Governed by Rule 4:25-1, these hearings are a chance for the judge to review the case and push for a settlement.
Tip: It’s crucial to attend all hearings. Missing one could result in penalties or unfavorable rulings.
7. Get Ready for a Trial (If Necessary)
If all other options fail, your case will go to trial. Here, a judge will make the final decisions on contested issues like custody, alimony, and property division.
What Happens at Trial:
Testimony: You and your spouse may need to testify.
Witnesses: You can bring in witnesses, like financial professionals or child psychologists.
Final Judgment: The judge’s decision will be legally binding.
Statutory Guidance:
New York: Divorce trials are conducted under DRL §§ 230-240.
New Jersey: Trials follow guidelines under N.J.S.A. § 2A:34-23.
Common Questions:
How long does a contested divorce trial take?
It can vary from a few days to several weeks, depending on the complexity of the case.
Can I appeal the judge’s decision?
Yes, but you must file your appeal within the time limits set by CPLR § 5513 (NY) or N.J.S.A. 2A:3A-2 (NJ).
What Happens in a Contested Divorce?
So, what happens in a contested divorce? Simply put, it can be a long, drawn-out process. Contested divorces often include multiple court appearances, lots of paperwork, and higher legal fees. But if you feel strongly about protecting your rights or getting a fair deal, contesting the divorce can be worth it.
Here’s what the court looks at:
Child Custody: The judge will always consider what’s best for the child, including who’s more involved in their daily life and which parent can provide a stable environment.
Dividing Assets: New York uses “equitable distribution,” which means dividing things fairly (but not necessarily equally).
Spousal Support: The judge looks at factors like how long you were married, your standard of living, and each person’s financial situation.
What Does the Judge Consider in a Contested Divorce?
The judge will review all the evidence and make decisions based on what’s fair and in the best interests of any children involved. Here’s a closer look at the main areas the court will decide on:
1. Child Custody and Visitation
What Judges Look For: The judge will consider factors like each parent’s relationship with the child, their ability to provide a stable environment, and the child’s best interests.
Statutes:
New York: The court uses the “best interests of the child” standard under DRL § 240.
New Jersey: Custody decisions are guided by N.J.S.A. § 9:2-4.
Common Questions:
Will my child’s preference be considered?
In some cases, yes, especially if the child is mature enough to express a reasoned preference.
2. Dividing Assets and Debts
Equitable Distribution: In both New York and New Jersey, courts follow the principle of equitable distribution, which means assets are divided fairly, though not necessarily equally.
Factors Considered: The court looks at factors like the length of the marriage, each spouse’s income, and contributions to the marriage (including homemaking).
Statutes:
New York: DRL § 236 outlines equitable distribution rules.
New Jersey: Governed by N.J.S.A. § 2A:34-23.
Common Questions:
Does equitable mean equal?
No, equitable means fair based on the circumstances, which may not result in a 50/50 split.
3. Spousal Support (Alimony)
What Judges Consider: The court looks at factors like the length of the marriage, the standard of living during the marriage, and each spouse’s financial needs and earning capacity.
Types of Alimony: Temporary, rehabilitative, permanent, or lump-sum payments.
Statutes:
New York: DRL § 236 covers spousal maintenance.
New Jersey: Alimony is outlined in N.J.S.A. § 2A:34-23.
Common Questions:
Can spousal support be modified later?
Yes, if there’s a significant change in circumstances, you can request a modification.
When Should You Contest a Divorce?
Deciding to contest a divorce isn’t something to take lightly. It can be time-consuming, stressful, and expensive. However, there are certain situations where it makes sense:
Reasons to Contest a Divorce:
You disagree with the grounds for divorce (e.g., claims of adultery or cruelty).
You’re concerned about losing custody of your children.
You believe the division of assets is unfair.
You feel the proposed spousal support is unreasonable.
Tip: If you’re not sure whether to contest, consult an attorney who can evaluate your case and advise you on the best course of action.
Is Contesting a Divorce Worth It?
Contesting a divorce can be emotionally and financially draining, so it’s important to weigh the pros and cons. Here’s what to consider:
Pros:
Protects your rights: Contesting can help you get a fair share of assets or custody.
Gives you a voice: You have the chance to present your side of the story in court.
Cons:
Expensive: Legal fees can add up quickly, especially if the case goes to trial.
Time-consuming: A contested divorce can take months or even years to resolve.
Stressful: The process can be emotionally draining, especially if children are involved.
Deciding whether to contest a divorce is a big decision. If you’re unsure, it’s always best to talk to an experienced attorney who can guide you through your options and help you make the best choice for your situation.
If you need more help understanding your rights or want to discuss your case, contact Krasner Law for advice and personalized support.
Get the Right Support
Understanding how to contest a divorce can help you take control of your situation. Whether it’s about custody, finances, or simply getting a fair outcome, you don’t have to go through it alone.
If you’re considering contesting your divorce, Krasner Law is here to guide you every step of the way. Contact us today to schedule a consultation and find out how we can help protect your rights and secure a better future for you and your family.