How to Contest a Divorce

Resolving Disagreements Through Mediation

Consider mediation before going to court. Mediation has a number of advantages over going to court, and you should know these advantages before proceeding with a court action. Some of the advantages of mediation are: Mediation is less expensive. Most mediations end in resolution of all of the issues pertaining to the divorce. Mediation is confidential. That means there will be no public record of the conversations that take place in your mediation sessions. Mediation lets you come to a resolution of your issues based on what you and your spouse think is a fair solution. Therefore, through mediation, you avoid a court-imposed solution that may be based on strict legal principles. Mediation still gives you the option of seeking the help of a lawyer if you wish. You and your spouse, rather than the court, can control the mediation process, which is not true of the court process. Mediation can help you avoid future conflicts with your spouse and can improve present and future communication between the two of you.

Consider the disadvantages of mediation as well. While mediation has a list of benefits over going to court for couples involved in a contested case, mediation is not for everyone. There may be instances in which mediation is not the best option for a particular couple, in particular if any of the following apply: When there has been domestic violence in the relationship, you may worry that the dynamics of the relationship would be replicated in the mediation sessions. Some people may find, in such situations, easier to have a lawyer negotiate on their behalf. The mediator does not have the authority to order either of the parties to do anything. That makes it possible for one party who wants to delay paying support, or delay the proceedings generally, to stall the process.

Suggest mediation to your spouse. If you feel that mediation is the best way to resolve your disagreement with your spouse, suggest mediation. Your spouse may agree that the benefits of mediation outweigh its costs and may find mediation preferable to having a court resolve your contested case.

Find a mediator. If you and your spouse do decide to go ahead with mediation as a way of resolving your dispute, find a mediator. If you are working with an attorney, your attorney can suggest a mediator. If, however, you are representing yourself, you will have to find a divorce mediator. Mediator referrals are available on the internet at such websites as www.mediate.com, www.divorcenet.com, and www.nolo.com. You can also contact mediation or family law organizations such as the Association for Conflict Resolution (www.acrnet.org), the American Arbitration Association (www.adr.org), and the Association of Family and Conciliation Courts (www.afccnet.org) for referrals. Other places to call for recommendations on finding a mediator include your local community mediation center (ask whether your case is appropriate for low-cost community mediation), your local bar association, or your local organization of therapists or financial professionals. You can also search your phone directory for “mediation,” “divorce mediation,” “dispute resolution,” or related terms. Be sure to find a mediator who has experience in divorce cases, as a general or business mediator with no such experience may not be the best option.

Call the mediator. Once you have received referrals for or found a mediator yourself, call the office of one of the mediators. This first call should give you a good idea of the mediator’s style and personality and should help you get an idea of whether or not you want to work with that mediator. You may be asked some basic questions about yourself, your family, and your marriage. Some mediators use this call to gather a great deal of basic information while others prefer to gather the most important information at the first meeting.

Attend the mediation meeting. If you express an interest in moving forward with the mediation, the mediator will schedule your first meeting, which will be attended by both you and your spouse and will normally take place in an office or conference room. The mediator will go over important information with you about the process and ask you to sign a mediation agreement, which will include a statement on keeping the mediation proceedings confidential. The mediator will also use this opportunity to establish a rapport with you and your spouse and make both of you feel comfortable.

Make an opening statement. At the first meeting, the mediator will ask you and your spouse to make opening statements. The mediator may then ask you some questions about what each of you has said and will try to ensure that everyone is on the same page in terms of what has been said.

Discuss your disagreements and come up with solutions. After hearing and discussing your opening statements, the mediator will then try to make clear those issues on which you agree and those on which you disagree. You will discuss what work needs to be done to bring yourself and your spouse into agreement on the issues on which you disagree. Depending on the nature of the disagreement, there may be additional information that you need to provide at a later meeting (e.g. if you are dealing with a property dispute and you and your spouse agree to sell the property, you will need to know the value of the property; if you do not know that value, you will need to bring that information to the next meeting).

Negotiate a mediation agreement. The mediator will help you negotiate an agreement. Negotiating an agreement often involves give and take, so you should be open to compromise and you should try to understand and listen to your spouse’s point of view. That does not necessarily mean you should agree to everything your spouse asks for but approaching the negotiation with the willingness to compromise and the willingness to understand your spouse’s point of view will help you come up with a solution more easily. Moreover, if you express a willingness to compromise and to be understanding, your spouse is more likely to do the same.

Complete a mediation agreement. Once negotiations are completed, the mediator or your attorney (if one is representing you) will draw up an agreement, which will be incorporated along with the rest of your divorce paperwork. The agreement will become part of your divorce judgment and will, therefore, become enforceable by a court. However, court enforcement of mediation agreements is usually not required because couples tend to follow the terms of the agreement (since the mediation process tends to ensure that the parties are comfortable with the terms of the agreement).

Contesting a Divorce Through the Courts

File a response. If you are intending to contest a divorce, it is likely that you have been served a petition from your spouse. Contesting a divorce, in other words, assumes that you disagree with something in that petition and would like to contest it. Your petition will give you a certain time limit to file a response. Be sure to file your response within that time limit. The clock starts from the day you are served the petition. If you need legal advice on how to file a response, consult an attorney. The response is very important, in particular if you are in disagreement about certain matters with your spouse, so it is in your best interest to have a legal professional review your forms.

Make at least 2 copies of your forms. The original forms will go to the court, while the 2 copies will be for you and your spouse.

File the forms within the time limit specified by the petition. File your forms with the court clerk, who will keep the original forms and return copies to you for your spouse and yourself.

Pay the filing fee. You will have to pay a filing fee when you file your response. Ask the court clerk for the possibility of a fee waiver if you cannot afford the filing fee.

Serve your papers on your spouse and file your proof of service. Serve (i.e. formally deliver) a copy of your response to your spouse. You can have the papers served by mail or in person yourself or by someone else. When serving, ask the server to fill out a proof of service form or fill out a proof-of-service-by-mail form at the post office. File this proof of service form with the court clerk when you receive it.

Hire an attorney. At this stage, you may wish to hire an attorney, who will help you through the various legal stages that are likely to arise in the future. These stages include discovery (the information gathering stages), pre-trial hearings, settlement proposals and negotiations between attorneys, and trial.

Engage in discovery. At the discovery stage, there will be a process of information gathering. This process involves getting information from you, your spouse, and third-party witnesses and includes written questions, subpoenas (i.e. written orders to compel a person to give testimony) and depositions (i.e. sworn out-of-court testimony).

Engage in pre-trial motions and hearings. A pre-trial motion is a motion before the actual trial of a case. At a pre-trial motion, lawyers from both sides of the case meet before a judge to attend to various matters that must be decided before the case goes to trial, such as who can and cannot provide evidence or that certain evidence should not be allowed in court. If you try to contest your divorce in court, there will be a chance for both you and your spouse (represented by your attorneys) to make pre-trial motions.

Try to settle the case. After pre-trial motions, there will be a stage when you are offered the opportunity to settle the case with your spouse. By settling the case at this stage, you avoid going to trial. The settlement phase involves proposals and negotiations between the attorneys of the two parties. If you come to an agreement at this stage, the case will be resolved. If you are unable to resolve your differences with your spouse, the case will go to trial.

Go to trial. If you are unable to resolve your differences at the settlement phase, your case will go to trial. At the trial stage, both sides will present witnesses, cross-examine the witnesses, and present closing arguments. At the end of the trial, the court will issue a final order that finalizes the divorce.

Appeal the decision. If you disagree with the trial judge’s decision, you will have the opportunity to appeal that decision. Appealing a decision can involve a legally complex procedure, and it is, therefore, in your best interest to seek legal advice from your attorney about the appeals process.