Contested divorce – what it entails

Article chapters

• When do we talk about a contested divorce?
• In a contested divorce, the children must be resolved first
• Divorce proceedings
• Can it happen that the court will refuse to divorce me?
• Property after divorce
• What else to deal with after a divorce?
• Summary at the end – what to consider in a contested divorce

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 while in the emotionally stressful moments of separation. In this article, we will look at a situation where spouses fail to reach an agreement and face what is known as a contested divorce.

In what conditions is contested divorce necessary?

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 or 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 in the court proceedings– in fact, it is highly desirable and a good judge will try to get you to agree, thereby speeding up the court process significantly.

If the agreement is not reached, the proceedings may drag on for a while, potentially for several years. The court will look at whether the child is better off in single, alternate or shared custody, and whether as well as how much child support will be paid.

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 begin. This is usually much shorter 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 agree. If unsuccessful, a second or further hearing is held. This prolongs the entire divorce proceedings and increases the costs of the divorce.

Man puts off wedding ring in contentious divorce

Could the court refuse a divorce?

Yes, this can happen, although it is not very common these days. The Civil Code provides for 2 exceptions where the court will not divorce a marriage even though it is so-called broken:

• One exception is if the divorce would not be in 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 being of one of the spouses.

Property after divorce

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

In this situation, you have 3 options:

• Try to make an agreement later.
• Within 3 years of the divorce, you file a petition with the court to have the joint property of the spouses settled. The court will then have the power to decide who gets specific assets and debts.
• If you don’t reach an agreement and don’t even file a petition, the settlement will be automatic.

We have discussed these options in more detail in our article on the settlement of the joint property of spouses.

What else is dealt with 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 favors the agreement between the ex-spouses. However, when an agreement fails or if an agreement isn’t reached, 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 in the case of a cooperative apartment. If one of the spouses already lived in the flat before the marriage, then they only share the rent but not the membership of the cooperative. If the co-op share was not in the HOA (unit owners’ association), 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) Alimony to former spouse – the alimony 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 the divorce, the person who took the surname of the other spouse has the opportunity to stop using this common surname within 6 months from the date the divorce decree became 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- what to expect in a contested divorce

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