The majority of divorces ultimately end as uncontested divorces, meaning they ultimately settle outside of Court, and do not require litigation.
A divorce case becomes contested when either:
- The parties attempt to negotiate a resolution outside of a courtroom and are unsuccessful in doing so; or,
- The parties know right from the outset that they are not going to be able to negotiate a resolution outside of a courtroom.
There are a number of different scenarios in which a divorcing couple might know from the outset that they won’t be able to negotiate successfully outside of a courtroom. This commonly happens in cases involving domestic violence, or otherwise deeply troubled relationships in which communication has completely broken down.
Negotiation might also be a non-starter in cases where there are sharply contested custody issues. These issues are often difficult to negotiate outside of a courtroom – in large part because the stakes and the emotions involved are so high that parties are less likely to be able to reach a compromise.
For instance, let’s say Parent A leaves the family home with the children and wants full custody, and Parent B is contesting the issue of custody and wants the child to be returned. In a case like that, there is often no “middle ground” the parties can agree upon, and mediation outside of litigation is typically fruitless.
If both parties know right off the bat that mediation or negotiation won’t work, then there’s usually no point in continuing to pursue it. Instead, you may as well contest the case from the outset. This means filing a document called a Request for Judicial Intervention.
A Request for Judicial Intervention asks the Court to assign a Judge to the case. Usually, the Court will respond to a Request for Judicial Intervention by setting up a preliminary conference, which is the first meeting with a Judge and/or their court attorney, and/or a Referee. Whether you meet with a Rudge, their court attorney, a Referee, or all three depends on the Court in question.
As I stated before, it is my experience that the majority of divorce cases are uncontested, or ultimately become uncontested cases. This stance is supported by larger statistical evidence. Certainly, in my own practice, the majority of cases I have handled have been uncontested. However, this does not mean I never deal with cases that are contested. In fact, as a divorce attorney, I deal with a statistically higher-than-average percentage of contested divorce cases (since my services are necessary to litigate them). I would estimate that around 30% to 40% of my divorce cases are contested at some point in the process.
It is important to note that a contested case can become an uncontested case at any time. At any step of the way, the parties can opt to negotiate and/or go into mediation outside of a courtroom – and thereby seek to settle the case. Indeed, roughly 95-98% of all divorce cases settle at some point before a trial ruling—including many cases which were fiercely and seemingly intractably contested when they began.
The point being, even if you have a contested divorce case, you can still settle up through the first day of trial. Even in cases where a trial has already started, you can move to negotiate to settle. Judges and court attorneys encourage settlement at every step of the way, as that is considered the desired outcome of divorce cases. In my practice, I have been very successful in settling these sorts of cases, and have received the full encouragement, support & assistance of Judges and court attorneys in pursuing settlements.
What Is Considered A Contested Divorce In New York?
A contested divorce, simply put, is a divorce case where the parties are not able to negotiate a settlement outside of a courtroom. Both parties have an absolute right to contest the divorce at any step of the way.
To start the process of contesting a divorce, the contesting party simply has to file a Request for Judicial Intervention, which will get a judge assigned to the case. At that point, parties are usually also allowed to file one of two additional documents.
One option is to file a Request for a Preliminary Conference, which we addressed above. This document will compel the Court to schedule your preliminary conference, which is your first meeting with a judge, a court attorney, and/or a referee.
The other option is to file an Order to Show Cause. This is usually done in case of emergencies, or to address any urgent or emergency issues. For instance, parties might file:
- An Order of Protection, sometimes referred to as a “restraining order”, which may compel the other party to keep a certain distance from the filing party, and to refrain from contacting them.
- An Order of Custody, in which one party seeks full or partial custody of the children, either indefinitely or for the duration of the divorce process
- An Order of Exclusive Occupancy, in which one party seeks to remove the other party from a shared residence.
In a nutshell, it is each party’s right to contest a divorce at any time. What “contested divorce” means is that the parties really don’t foresee being able to settle the case through mere negotiation or mediation outside of a courtroom, and need the intervention of a Judge and potentially a trial.
Simply contesting a divorce case does not necessarily mean you will have a full divorce trial – as I mentioned earlier, around 95-98% of divorce cases eventually settle prior to trial. However, if one or more of the issues in the case cannot be resolved, then contesting the case puts one on the path towards a trial (whereby a Judge can then resolve the issue).
What Are The Most Common Reasons That Couples Find Themselves In A Contested Divorce Situation?
In my experience, the most common reasons that couples find themselves in contested divorce situations are:
- Sharply contested custody or visitation issues
- Very steep requests for asset distribution and/or spousal maintenance (otherwise known as “alimony”)
In either of these cases, the dispute would have to be so severe that there is no middle ground and negotiation is not possible.
For example, let’s say the parties are trying to negotiate a resolution on custody issues. Often, attorneys will try to recommend that their clients try to find a compromise, and possibly settle for some kind of joint or shared custody. However, in cases where both parents absolutely insist that they want primary physical custody, the idea of joint or shared custody isn’t really applicable. If both parties are absolutely set on fighting for full physical custody and refuse to accept anything less under any circumstances, further negotiation is going to be fruitless.
The same concept applies to contested issues around visitation. For instance, let’s say that Parent A insists that Parent B shouldn’t have overnight visits, or should only have supervised visits, and Parent B refuses to accept those terms. There may be good reasons for Parent A’s insistence: Parent B could have drug or alcohol issues, or perhaps mental health issues. On the other hand, there may be good reasons for Parent B’s insistence: Parent A could be acting out of spite or vindictiveness, or perhaps fabricating reasons to withhold the child from Parent B. In a case like this, you are highly unlikely to get either parent to budge on their position, and further attempts at negotiation or mediation in search of a “compromise” are almost certainly not going to work.
You could also have a parent say s/he wants shared custody, but they want it to be organized in a particular way the other parent does not agree with. In such a case, the attorneys for both sides will do their jobs and try negotiating a solution which works for everyone, usually by proposing various ways to settle the issue.
For example, let’s say two parties, Parent A and Parent B, come in with this sort of case. Parent A is insisting that out of every two weeks (14 nights), they should have the children for 9 nights, and the other parent should only get the children for 5 nights. Parent B is insisting on a strict 7-night/7-night even split.
As attorneys, we might propose a compromise of perhaps an 8-night/6-night split or alternating 9-night/5-night splits every two weeks – if the issue has to do with weekday versus weekend scheduling.
These cases can be settled by reaching a mutually acceptable compromise – and often are. However, at the end of the day, if one or both parties reach a point where they absolutely insist on having their way and refuse to budge, continuing to push for compromise is pointless. At that point, it is time to get a judge assigned to the case.
It’s worth mentioning that sometimes, getting a Judge assigned to a contested case is a good thing. In some cases, people really don’t want to hear from their attorneys what the best course of action is, and it can really pay to hear basically the same information from a Judge. Judges can listen to the details of the case as presented in that first meeting, and can reason candidly with one or both parties about the likely outcome if they move forward with a hearing. They can do so with an air of authority that many people find more compelling than the advice of his/her own attorney.
Of course, this is not a “pre-judgement” – Judges will qualify that they’re not telling the parties what they personally will decide once all of the arguments and testimonies are made, and the evidence is laid out before them at a full trial. However, they can say what they have heard about the situation up to that point does not support one or both parties’ case for the particular issue they’re disputing.
Sometimes, if parties hear this sort of honest estimation from a Judge, they become much more likely to settle or to at least consider re-entering negotiations. Other times, talking to a Judge does not have this effect. Two different people can hear the same thing from a Judge and have wildly different reactions: one can decide that a settlement is a better idea, and another might double down on their position and insist on moving forward with a hearing. In the case of the former, the next step is to re-enter negotiations or broker a settlement if the parties are ready. In the case of the latter, the next step is to continue on down the road to a trial.
For more information on Contested Divorces In The State Of New York, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (347) 797-1188 | (914) 362-3080 today.
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