Author: S. Thomas Lee, Esq.   Last Updated: 12/9/2018

What is a contested divorce?

In addition to ending a marriage, There are other issues that must be resolved in a divorce, such as the division of marital property, marital debt and retirement benefits, and the issues of alimony, child custody, child visitation schedule and child support. If there are disagreements regarding any one or more of these issues, the divorce becomes contested.

In a contested divorce, the parties gather facts and evidence regarding the disputed issues, present them in court, make legal arguments and ask the judge to decide who should get what.

Court Procedure

Parties to a litigation have a general right to an expeditious determination of its outcome. Therefore, courts do not like to prolong cases unnecessarily. At the same time, the litigation process must be thorough in order to arrive at a fair outcome. The court procedures in a contested divorce are designed to address these concerns.

In New York, a divorce lawsuit is started by filing certain litigation papers with the county clerk. These papers may consist of (a) a Summons With Notice or (b) a Summons and a Verified Complaint. The plaintiff will then have to give notice to the defendant that a divorce court case has been commenced against him/her. There are a few ways to give such notice depending on the whereabouts of the defendant. Usually, the notice, consisting of the filed litigation papers, must be personally hand-delivered to the defendant by a person who is not a party in the lawsuit.

After the defendant is given notice, the defendant must respond to the litigation papers within a given time period. Otherwise, he will lose the divorce lawsuit by default.

After the defendant makes a response, one of the parties will file a Request for Judicial Intervention (RJI) to set a preliminary conference (PC) at the courthouse. At the PC, the judge will require the litigants to identify the issues that are in dispute and work out a time schedule for discovery. Discovery refers the request and exchange of financial and other information relevant to the case. If custody or visitation is contested, the judge may appoint a Guardian Ad Litem to represent the interests of the child at court. A Guardian Ad Litem is usually a lawyer, he represents the Child only in regard to the lawsuit in question. He may not make decisions for the child. If the values of marital assets such as real property, businesses or pensions are in dispute, the court will appoint appraisers to appraise the assets.

At the end of the PC, the judge will issue an order setting forth the disputed issues between the parties and a series of deadlines for discovery. The judge will also set a date for the next conference at the court known as a Compliance Conference (CC).

At the CC, the judge will ask if any of the disputed issues has been resolved, and see if the parties have met the discovery deadlines. At this point the judge may issue further orders that will help the parties complete the discovery process so the case can go to trial.

A Note of Issue will then be filed, telling the court that discovery is complete and the case is ready for trial. A Pre-trial Conference is usually held to make sure the case ready for trial.

At the trial, the plaintiff will presents his/her case first. The plaintiff may testify to establish the facts necessary to support his/her claims. Plaintiff may also call supporting witnesses or experts. Documentary or physical evidence may be introduced and entered into the record. Anyone who testified may be subjected to cross-examination.

After the plaintiff's case is presented, the defendant will present his/her defense and possible counter-claims. If there are counter-claims, the plaintiff is entitled to a rebuttal.

After the trial, the judge will decide all the disputed issues and issue a written Decision. A decision cannot be enforced until a Judgment is issued by the Judge and recorded by the county clerk.

Disclaimer: this article should not be construed as legal advice. Each legal case should be analyzed based on its own facts and circumstances.

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