A litigated divorce is one where both parties can’t come to an agreement and resort to the courts to settle their differences. This type of divorce usually happens when one party refuses to settle on key issues, deliberately hides information such as financial records, or refuses to disclose details about all property they owned prior to getting married (which may have appreciated in value, making the difference subject to distribution).

If your spouse is being difficult and litigated divorce is necessary, then you and your divorce attorney can file a Summons with Notice or a Summons and Complaint and serve it upon him or her. Once they are personally served, they have 20 days to “appear” in the divorce action. During the time when these and other (if applicable) legal documents are being exchanged, you, your spouse, and your respective counsel can carry on settlement negotiations outside of court.

What if a settlement cannot be reached?

If settlement outside of court is not possible, then judicial intervention is necessary. Your attorney (or your spouse’s) may also file a pendente lite motion asking the judge to consider certain factors while the divorce case is pending. These factors include (but are not limited to):

  • Temporary child custody and support
  • Temporary spousal maintenance
  • Orders of protection
  • Exclusive occupancy of the marital residence

While the case is being prepared for trial, both sides usually keep negotiating, to see if outstanding differences can be resolved. If not, a trial on the outstanding matters will take place. Commonly litigated issues include equitable distribution of marital assets and debt, spousal maintenance, and child custody and support.

What happens in court?

During the trial part of a litigated divorce action, you and your spouse are entitled to present evidence and have witnesses provide supporting testimony. The length of time that the trial takes will depend on the complexity of the issues involved. In the end, the court will make a ruling on the matters that you and your spouse could not agree on. Sometimes the ruling is one that neither of you are happy with, making it preferable for divorcing parties to reach a settlement of their own whenever possible.

Litigating unresolved issues in a divorce action calls for a lot of time and money, so whenever possible it is far preferable for you and your spouse to agree on as much as possible. If you are considering filing for divorce, a New York family law attorney can help you prepare and file the paperwork and work on a settlement agreement with the other side. Sometimes, unfortunately, it is impossible for a divorcing couple to agree on everything, so your attorney will protect your rights in and out of the courtroom and help you get what you need to start over.