Divorce is a legal termination of a marriage. It is different from annulment in that the parties agree that there was a legal marriage, and now it is ending.
There are generally two types of divorce:
- uncontested (collaborative).
A contested divorce involves a court action where the parties cannot agree on the terms and ask the court to get involved and make a ruling or decision on issues they are not able to settle on their own. Uncontested or collaborative divorce is where the parties write up and submit to a court a settlement agreement sometimes called a Stipulation of Settlement or Settlement Agreement.
Contested divorce litigation focuses on the following issues that sometimes are too challenging for the parties to agree upon by themselves without lawyers and without court intervention:
1.Divorce Grounds. In New York and New Jersey, for example, the first issue that people “contest” (or cannot agree on) is the grounds, i.e. the official reason the parties are divorcing.
2. Children: сustody, visitation and parenting plan.
- Legal custody – who has the legal rights of making all the major life decisions for the children (medical, education and travel).
- Physical or residential custody – which parent will the children live with. Custody has two aspects: legal custody
- Visitation by each parent – the courts want to ensure that each parent has equal time with the children, and the courts take into consideration the children’s best interests, work schedules of both parents, geographic locations of the parents and children (i.e. one parent living in another state, having moved after divorce), children’s activities, children’s health, special needs and other unique things that each family has when making determination of designating the days, times and periods of visitation.
- Parenting plan – long term plan that the parents need to stick to in connection with holidays, school breaks, vacations and summertime spent by each parent with the children.
- Relocation by both the custodial and non-custodial parent after divorce. What happens if the divorce was in Brooklyn, New York, but the mother remarries to a life-long New Jersey resident and wants to move with the kids to a part of New Jersey that would require the father to drive 2 hours one way to pick up the kids for his visitation. Sometimes, the parties can agree about a specific mile radius within which either parent can relocate from their current home base without going to court for disputing the move.
Conversely, what if the con-custodial father receives a job offer taking him to California and the parents need to come up with a creative parenting plan that would allow an alternative visitation schedule of the father visiting the kids once a month for 4 days in a row.
Each parenting situation is unique and requires a long deep analysis.
3. Child support – how much will the non-custodial parent have to pay to the custodial parent to support the children, keep the roof over their heads and put food in their mouth.
4. Alimony/Maintenance. The monied spouse (the party who earns more) should continue to support the other spouse after divorce for a certain period of time to give them time to get on their feet and maintain the less-monied spouse in the lifestyle the monied spouse got them accustomed to during the marriage.
5. Property division and marital debts. If the parties did not have a pre-nuptial agreement, their marital property is divided equally. There are issues that come up when parties used their pre-marital property and mixed it with marital property, joint and separate debts, inheritances during the marriage, gifts to parties and increase or decrease of marital property. Also, when one spouse worked throughout the marriage and the other one worked only part-time or stayed home, the parties may disagree to the 50/50 general split.
6. Temporary/Interim Relief – what happens to the children and what are the parties temporary financial obligations (child support, alimony and initial property division) while the divorce case is pending (ongoing) in the courts. In NY State this is called pendente lite relief.
7. Other ancillary relief. This can include religious divorce provisions, name changes and other specific needs of the parties.
Best interests of the children
In every divorce, but especially in contested divorce litigation, in each decision affecting the children, the judges focus on how the kids’ interests are best served. With older age children, many courts have a common practice of the judge interviewing the children. Alternatively, we often see the courts appointing Attorneys for the Children to represent the interests of the children separately from the parents.
The Attorney or Legal Guardian for the Children interviews the children and the parents may visit the parents’ place of residence and may work with Children’s Services organizations like Administration for Children’s Services (ACS) in New York or Division of Youth & Family Services Investigations (DYFUS) that employ social workers, counselors and other psychology and counseling professionals to report to the court neutrally what the best interests of the kids are in a specific situation. This is not limited to families where drug or alcohol addiction or abuse is in issue. Instead, this applies to all divorces.
Many states require the parties to try mediation before going to court, i.e. it is mandatory to have a documented mediation effort before asking for court intervention. In other states, mediation is just an available pre-litigation option.
Mediation is the process where the parties use a third-party mediator (the neutral party who may or may not be a lawyer depending on the state requirements) in order to settle their divorce issues.
Contested divorce and its specifics vary from state to state in waiting periods, pre-litigation requirements like mediation, residency requirements and jurisdiction, venue (which geographical court location will be required), minimal period of disagreement or living apart of the parties, separation requirements, filing fees and the divorce decree details.
Before deciding on pursuing contested divorce litigation, we advise separating couples to think about the issues involved, what type of lawyer they would feel most comfortable with, think about the waiting periods and differences between the divorce grounds and separation versus divorce. We urge couples considering divorce to try marriage and family counseling, consider mediation and most importantly, think of what they personally want to have as the end result.
Even after a final court decree or judgment of divorce is finalized, each party retains a right to appeal the decision to a higher state legal authority.