Even under the best of circumstances, divorce is complicated. It can become even more so during a contested divorce, where parties disagree on the terms of their final divorce settlement. Whether it’s child support, alimony, or the division of assets, there are a number of places in which a divorce settlement can give rise to contrary needs or desires.
However, a contested divorce doesn’t have to be a drawn-out battle, despite what you might see on TV. Similarly, what starts as a contested divorce doesn’t have to stay that way—every family, and every divorce, is different.
When it comes to navigating a contested divorce, the most important step you can take is to have an experienced contested divorce attorney on your side—but it’s also helpful to understand what the process might look like and be aware of the different pathways available to you.
There are many different ways to resolve a contested divorce, without the stereotypical contention, stress, and animosity that is all too common on primetime TV.
What is a Contested Divorce?
A contested divorce happens when the parties involved disagree on some or all matters of the divorce settlement, ranging from the division of financial assets to child custody decisions.
There are several ways that a divorce might become contested:
- The couple can’t come to an agreement on issues
- The divorce starts out—or becomes—high conflict
- One party is unhappy with the results
A contested divorce can settle at any time before a trial, and if it does, it becomes “uncontested.” Keep in mind that while an uncontested divorce may sound more manageable, it’s essential to engage in the process.
The terms of a divorce settlement can have major long-term financial and emotional implications. If you receive a divorce complaint, we strongly recommend talking to an attorney who is experienced in contested divorces so you can understand your options and form a plan that addresses your needs moving forward.
Does a Contested Divorce Have to be Settled in Court?
No. Each divorce—and each family—is different, and there are several approaches you can take to resolve a contested divorce without courtroom litigation.
- Mediation: A couple may be able to work through the terms of their divorce through mediation, a form of Alternative Dispute Resolution (ADR). In mediation, a couple works with a neutral third party, by themselves or alongside any legal counsel, to negotiate the terms of their settlement agreement.
- Arbitration: This ADR method is similar to mediation but differs in that a neutral third party makes binding decisions (like a judge) for the couple on the terms of their divorce. The difference is the process is less formal and takes less time than a normal trial through the court system.
- Pre-trial: During the pre-trial phase of a litigated divorce, a divorcing couple may be able to resolve contested issues in their divorce through a Pretrial Early Settlement Panel (ESP). This process can facilitate settlement before going before a judge by providing parties recommendations based on evidence submitted during discovery. You can also try settlement proposals exchanged between your attorneys to see if you can narrow the issues.
It’s key to remember that legal strategies are adaptable. You can change from mediation to litigation and vice versa. The New Jersey court system builds space for settlement-oriented discussion into the litigation process, so there’s opportunity to adjust as the proceedings take place or before they even begin.
Feeling overwhelmed with your options is completely normal. Open communication with your divorce attorney about your concerns and questions can help you demystify the divorce process and understand what to expect.
How Does Child Custody Work During a Contested Divorce?
In New Jersey, the court makes child custody decisions based on what it believes to be in a child’s best interests. When possible, the court prefers joint legal custody and a parenting time arrangement where the child spends time with both parents.
The methods used by the courts in making child custody decisions will depend on the facts of the case. In certain custody matters, a mental health expert or experts may become involved to perform a child custody evaluation or other evaluation that will inform the court’s decision-making.
Parent-Child Relationships, Custody, and Contested Divorces
Emotions may run high during a contested divorce, especially if you and your co-parent disagree about something related to your children.
It’s important, though, to avoid making decisions that will negatively impact your child’s relationship with their other parent. One way that may occur is through parental alienation. Parental alienation will be viewed negatively by the court system. If one parent attempts to disrupt a child’s relationship with the other parent, these actions could negatively impact the court’s decisions regarding custody or parenting time.
How Do Alimony and Child Support Work During a Contested Divorce?
Spousal support (alimony) and child support are treated differently in the New Jersey court system. While the state has a set formula to determine child support, there’s no such set policy when it comes to alimony.
Instead, the courts balance numerous factors, including child support, standard of living, debts, assets, spousal earning capacity, and length of the marriage. Alimony can look many different ways, depending on financial situations—it’s a common misconception that it is paid only to stay-at-home individuals. Several different types of alimony and alimony agreements or alimony obligations imposed by the court may change depending on how circumstances evolve.
If you’re working through a contested divorce and you’re concerned about how this will impact child support or alimony payments, the most prudent strategy is to speak with a divorce attorney who is experienced in contested divorces. They can help you understand your options and how to move forward most effectively.
How are Assets and Liabilities Distributed in a Contested Divorce?
Generally, assets acquired over the course of the marriage are considered marital property, and the New Jersey courts use the principle of equitable distribution to guide the distribution of these assets. Under equitable distribution, assets are split fairly but not necessarily equally.
Distribution of assets and liabilities is determined as a result of the discovery phase of your divorce. Discovery is the information-gathering stage of the divorce process. The discovery process can last several months and involves the exchange of information between both sides’ legal teams. This information can include:
- Case Information Statements: In-depth questionnaires about employment, income, expenses, assets, and liabilities. These need to be filed with the court when litigants enter the system, so it’s an essential component of any contested divorce case.
- Interrogatories: Written questions pertaining to any aspect of the divorce
- Notices to Produce: Court requests for documentation to support financial claims
- Requests for Admissions: Court requests for information regarding events or expenses—these requests must be answered within 30 days of receipt
- Subpoenas: Requests to appear before the court
- Depositions: Requests for sworn testimony, given outside the courtroom setting
If you or your spouse contest the distribution of assets during your divorce, it may be necessary to seek professional support to resolve these disputes. This process may involve obtaining appraisals, business valuations, or further discovery to make the appropriate determinations that can help settle the conflict.
How Do I Figure Out The Right Strategy in a Contested Divorce?
Every family is different, and it’s essential to work with a legal team that can help you find personalized solutions to your issues and concerns.
At Jacobs Berger, our experienced contested divorce attorneys work with our clients to find constructive and creative solutions for even the most difficult of divorces. Our practical and holistic approach allows our clients to resolve their contested divorce in a manner that protects their family’s financial stability and emotional wellbeing, paving the way for a better future.
If you find yourself in a contested divorce, our experienced divorce attorneys can help. Contact us today to schedule a strategic planning session.
