Sometimes, two people just don’t work any more, and they both agree that it would be best to seperate. When it comes to divorce, however, when people have been together for a long time — raising children, sharing assets — things often don’t end so amicably. This can be for different reasons; disagreements about child support, property, or one party simply refusing to sign divorce papers.
No matter what the reasons are, there are only two types of divorce; contested and uncontested. This hinges simply on the questions: do both parties agree, or do they have disagreements that need to be settled by the legal system?
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Contested Divorce vs. Uncontested Divorce
It is pretty standard in Western modern legal systems that only one party needs to file for divorce. You cannot halt a divorce proceeding by refusing to sign divorce papers, however if one party dislikes the language and/or the terms set out in the original filing, they can refuse to cooperate in order to attempt to change the agreement.
An uncontested divorce is relatively straightforward. Both parties agree to the original paperwork that’s filed, the person who is served the papers signs them, and the separation proceeds according to the terms set out in writing.
A contested divorce is when the person being served divorce papers refuses to cooperate for any reason. They might not even have a legitimate problem with the agreement, but instead simply do not want a divorce, or are intent on making it as difficult as possible for their spouse to file.
In a contested divorce, there is usually a hearing, during which a judge will listen to the case of each party and then deliver a ruling about the contested terms. However if the separating couple can come to an agreement before the hearing date, the negotiations can be settled that way too.
Contesting a divorce makes the whole process more time consuming and expensive than if it were not. If you are preparing to divorce someone, or are served divorce papers, it’s an excellent idea to meet with an attorney to discuss your options and get an idea of just how exhausting the process can be. Divorce can become quite expensive, especially with legal fees over disputes, so both parties have incentive to come to an out-of-court agreement. Although coming to a fair agreement is in the interest of both parties, that is not always achieved without arbitration.
Steps to a Contested Divorce
Whether you’re the one serving or being served with divorce papers, it’s always best to seek legal advice before making a decision about the terms. An attorney can advise you about what you can reasonably expect from a divorce, and if child custody/support is going to be an issue, you absolutely want to be as informed and prepared as possible.
Sometimes the simple act of refusing will convince the other party to negotiate a deal, but if a divorce goes through to arbitration, you’ll want assistance preparing testimony and evidence.
Meeting with an Attorney
Meeting with an attorney is probably the first thing you should do. Whether you’re planning on serving divorce papers, or whether they are served to you.
If you’re thinking about serving divorce papers, an attorney can help you draft them, and guide you in the use of language, how to present your arguments for the reasoning of the divorce, and how much you can reasonably expect to be entitled to when it comes to the splitting of property and childcare. They can also prepare you for the scenario in which your spouse refuses to sign.
If you’ve been served divorce papers, do nothing until you’ve sought professional legal advice. An attorney can advise you about the fairness of the terms, the pros and cons of refusing to sign, and preparing your arguments if a hearing becomes necessary. Most importantly: don’t sign anything until you’ve at least had a consultation with an attorney. Many will offer free or low rate initial consultations.
If there’s disagreement about the initial terms of the divorce, then mediation is required. The legal process begins with setting a date for a court hearing in front of a judge, but that doesn’t mean that’s how things have to proceed.
In the time between serving the papers and the court date, each spouse and their attorneys can negotiate the terms of the divorce, and if they reach an agreement, the issue can be closed without needing to attend the court date.
If, however, an agreement can’t be reached through negotiation, the issues are taken before a judge. Each party will need to prepare testimony concerning the reasoning for the divorce — especially if either party wishes to establish or contest a “fault” with the divorce. Including a fault with the divorce papers can increase the chances of a favorable outcome for you, but can make it less likely the other party will want to come to an agreement.
A fault divorce allows one spouse to accuse another of being legally at fault, for reasons such as adultery, cruelty, or desertion, among others. In some states a judge will take this into account when dividing assets and determining child custody, so proving a fault can be a powerful tool in legal arbitration.
Filing a Petition
Filing a petition by serving it to the other spouse is the official start of the process. One spouse can do this themselves. If they don’t feel comfortable, or if the partner to be served cannot be found, professionals can perform the serving of papers. Alternatively, if the separation is amicable, spouses can file the petition jointly.
Generally, once the petition has been served, a number of limitations take effect on both spouses. It signals an official separation, may come with restraining orders, and prevents either spouse from taking their children across state lines or selling jointly owned property.
How to Avoid a Contested Divorce
The best way to avoid a contested divorce is to submit a “no fault” petition. This doesn’t accuse the other party of any wrongdoing. Normally, this makes the party being served a lot more agreeable to signing because they aren’t required to admit fault in doing so.
Consulting an attorney about fair terms can also help the process along. Or, if you are filing for an at-fault divorce, collecting sufficient evidence in combination with a relatively fair offer can convince the other party that fighting it wouldn’t be worth the expense.
The most efficient way of filing for divorce is jointly. When both parties submit the petition in agreement, the process is considerably easier — in those cases you can even easily file for divorce online. If you and your spouse have decided to separate and can do so amicably, joint filing can save a lot of headache, and negates the need for arbitration and court dates.
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