Contested divorces have been inspiring filmmakers for generations. From the 1979 custody blockbuster Kramer vs. Kramer to War of the Roses to the more recent Divorce Corp (2014), they have been depicted as emotionally devastating battles where both sides are more interested in hurting each other than achieving a fair outcome that lets them get on with their lives.
Sometimes art does imitate life. One New York couple took 21 years to complete their divorce, apparently because neither one was willing to make things easy for the other, but this is highly unusual. The reality is that even a divorce between spouses who want to keep things amicable can unexpectedly become contested, but resolution does not have to be difficult or prolonged.
Three reasons why a divorce can become contested
The reasons for contesting a divorce are unique to each couple, but they generally fall into one of these three categories.
1. Your spouse does not want to end the marriage
Fortunately, the days when you had to ask your spouse to give you a divorce are long gone. You have the right to end an unhappy marriage with or without their participation and permission. However, this doesn’t mean that your spouse’s behavior can’t complicate things.
In New York, the divorce process requires you to formally serve divorce paperwork on your spouse, who must then respond to the summons within 20 days. If they refuse to respond, it is considered a default, and the divorce action can continue.
Bear in mind that this type of default divorce is only possible if it can be proven that your spouse knew you had filed for divorce. If you serve them yourself, they may be more likely to deny receipt of the documents, so it’s best to have a neutral third party, such as a professional process server, deliver the paperwork.
2. You and your spouse disagree on the grounds for divorce
There are seven legally-accepted grounds for divorce in New York state. The most commonly used one is irretrievable breakdown of the relationship, otherwise called a no-fault divorce. The others are:
- Cruel and inhuman treatment (e.g., domestic violence)
- Abandonment (where one party moved or refused to engage in sexual relations)
- Imprisonment (one spouse must have been in prison for at least three years in a row after the marriage began)
- Divorce following a legal separation agreement
- Divorce after a judgment of separation (rarely used)
If you file for divorce because your spouse has been abusive and they deny it, then the proceedings become contested.
3. You and your spouse cannot agree on child custody and support, spousal maintenance or property division.
Couples divorcing in New York state have to address the custody and support of their minor children, whether or not spousal maintenance is needed, and how to divide the marital estate. If you fail to agree on even one of these crucial areas, your divorce becomes, contested and a judge will have to make the decision.
Child custody and visitation rulings are based on what the court believes to be the best interests of the children, while support orders are based primarily on parental income and number of children.
With spousal maintenance, the process is different. If you request it, but your spouse doesn’t want to pay or disagrees on how much is fair, the court will make a determination on amount and duration by reviewing factors like the length of the marriage, your respective ages and earning capacities, and which parent the children will be living with.
Property division is also decided on a case by case basis. Unlike community property states, which assume a 50-50 ownership of marital assets, New York follows the equitable distribution rule, which means that the division will be based on what the court considers to be fair. Like spousal maintenance, factors like the length of the marriage, your age and health, earning ability, and tax implications will be taken into account.
Contact an experienced New York contested divorce attorney today
If you are facing a contested divorce, then it is strongly recommended that you seek qualified legal representation, especially if you or your spouse has a high net worth, or you are worried that they might try to conceal assets like money and property. In an ideal world, divorcing couples should be transparent and work together for the sake of their children, but, unfortunately, this doesn’t always happen.
A New York divorce lawyer will protect your interests and those of your children by helping you negotiate and resolve contested matters as quickly and efficiently as possible. If your spouse refuses to cooperate, your attorney will fight for your rights to ensure that one person’s hostility does not impact your future well-being. At Jayson Lutzky, P.C., we have successfully supported many clients through challenging divorces and will give you the advice and guidance you need. For more information, please contact our office today.