Contested versus uncontested divorce

| May 13, 2021 | Divorce |

The image that usually comes to mind at the thought of divorce is a courtroom scene before a judge, or perhaps the two spouses huddled with their attorneys as they sit on opposite sides of a boardroom table. In spite of this traditional view, far more divorces are now settled out of court in collaborative arrangements or with the help of mediation or other forms of alternative dispute resolution (ADR).

The avenues for divorce proceedings really depend on whether one or both spouses disagree about the grounds for divorce, the financial terms or the custodial arrangements, or if they agree to all of the above and can reach a settlement.

When couples file for divorce in New York, if one party has grounds for divorce that the other party does not challenge, it is uncontested. If the two spouses cannot agree on property division, custody, child support or alimony issues, it becomes a contested divorce. Many situations begin with a contested divorce but then a settlement is reached, thereby shortening the procedure.

By far the most expensive and lengthy procedure is a contested divorce. Retaining a lawyer, calling on witnesses and experts, paying court costs and waiting for a court appearance is costly and can be emotionally exhausting. By the time the final divorce decree comes down, the process could last a year or more.

Collaborative divorce

Among the many ADR resolutions available to divorcing couples, collaborative divorce is an attractive alternative for those who recognize the shortcomings of litigation, but who still wish to have the support of an attorney during the process.

In a collaborative divorce, skilled attorneys trained in collaborative law methods are present on both sides as part of an interdisciplinary team that will also include a mental health professional and, in some cases, a financial advisor or child custody specialist.

While factoring in the priorities of their clients, the main objective of the attorneys is to negotiate a divorce settlement that will have a positive outcome for both sides. The mental health professional is there to monitor the emotional needs of both parties, which may include mitigating the effects of emotional triggers that could hamper negotiations.

A hallmark of collaborative divorce is that, as it is a client-focused and interest-based negotiation process, it allows both sides to come away with something of value. This usually leads to a win-win outcome that will provide a path for the spouses to amicably preserve their relationship after divorce. Not only does this help the healing process, where there are children, it will also make them better co-parents later on.