Contested divorce – what it entails

Whether you have been together for five years or thirty, the crucial difference is whether or not you are able to agree on the basic structure of your relationship after the divorce in the emotionally stressful moments of separation. Today, we will look at a situation where spouses fail to reach an agreement and face what is known as a contested divorce.

When do we talk about a contested divorce?

This is a situation where the spouses do not meet the conditions for a simplified court procedure and are unable to agree on child custody and property division on their own beforehand. The court process then proceeds as standard, with the court taking evidence and establishing in detail the causes of the breakdown of the marriage. Usually the spouses have to undergo several court hearings, which is more costly and time-consuming.

In a contested divorce, the children must be settled first

If the spouses have minor children (i.e. children under 18), there must be court proceedings before the divorce itself to clarify who will continue to care for the children. The court will not divorce the spouses until the custody of the children is settled. Even if, as divorcing spouses, you were not able to agree on child custody beforehand, it is not a problem to reach an agreement during the court proceedings. On the contrary, it is a very desirable course of action and a good judge will try to get you to come to an agreement, thereby speeding up the court process considerably.

Failure to reach an agreement can drag out the proceedings considerably, even for several years. The court will look at whether it is better for the child to be placed in the care of one parent, whether it should be alternate care or joint custody, and whether and how much child maintenance should be paid. All this can be extended by appealing against the decision.

Distribution control

Once a final judgment is on the table regarding the custody and maintenance of a minor child in the post-divorce period (or if the spouses do not have minor children), the divorce proceedings themselves come into play. This is usually much shorter and quicker than the children’s court.

One spouse must start the proceedings by filing a petition for divorce with the court. The judge will then order an oral hearing to hear both spouses and find out the reasons for the breakdown of the relationship. At the first hearing, the court tries to get the spouses to come to an agreement. If unsuccessful, a second or further hearing is held. This prolongs the entire divorce proceedings and increases the costs of the divorce.

Could the court refuse to divorce me?

Yes, this can happen, although it is not very common these days. The Civil Code provides for two exceptions where the court will not divorce a marriage even though it is so-called broken:

• One exception is if the divorce would be contrary to the interests of the minor child of the spouses, which is due to special reasons (for example, the child’s mental or physical disability).
• The second exception is where the divorce would adversely affect a spouse who has not been predominantly involved in the breakdown of marital duties and who would be particularly seriously harmed by the divorce. Again, this will usually be a situation involving some severe disability – this time on the part of one of the spouses.

Property after divorce

Another disadvantage of an uncontested divorce is the fact that even if you are finally divorced, you do not have a division of your community property. This is because it is not settled in divorce court.

In this situation, you have three options:

• You can make an agreement later.
• Within three years of the divorce, you can file a motion with the court to have the SJM dissolved. It will then have the power to decide who gets the specific assets and debts.
• If you don’t reach an agreement or file a petition, the settlement will be automatic.

We have discussed these options in more detail in our article on the settlement of SJM.

What else is resolved after a divorce?

The dissolution of a marriage affects other areas besides those already mentioned above. The most common issues are:

1) Rental housing – in this case, the law favours the agreement of the ex-spouses. However, when an agreement fails, the court takes into account who has what rights to the apartment (for example, who had the right to rent before the marriage) and whether children should live there with them.

“It is different with a cooperative apartment. If one of the spouses already lived in the apartment before marriage, then they only share the rent, but not the membership of the cooperative. If the co-op share was not in the HOA, the other spouse would get nothing. The tenancy in common ends after the divorce and the court can evict the other spouse on the application of one spouse.”

2. Spousal maintenance – the maintenance obligation ceases with the dissolution of the marriage. The law provides for cases where one spouse is entitled to alimony even after the divorce. What are these cases?

• The spouse is unable to support himself/herself and is therefore entitled to have the other spouse contribute to his/her reasonable maintenance according to his/her means and financial circumstances.
• In the second case, the court may award maintenance to a spouse who did not play a major part in the breakdown of the marriage and who has suffered significant damage as a result of the divorce.

Change of surname – after a divorce, the person who has taken the surname of the other spouse has the possibility to stop using this joint surname within six months from the date on which the divorce decree becomes final. The notification of the change can be made at any registry office and is exempt from the fee. A change of surname is of course possible after this period, but in this case there is a fee.

Summary in conclusion – what you need to take into account in a contested divorce

• The procedure for filing a divorce without an agreement is more complicated and lengthy.
• Any disagreements or undelivered documents can extend the divorce proceedings for a year or more.
• There are, of course, higher divorce costs associated with it .
• In the event of a disagreement, the division of community property or spousal support will also need to be resolved through additional court proceedings.