There are essentially two ways you can get divorced in New York: contested or uncontested. Deciding which way to proceed is one of the most important questions you will answer because it determines who controls the process and resolves the conflicts, and how much time and money will be spent fighting over details. Let us explain the different divorce process options.
In an uncontested divorce, you and your spouse negotiate with attorneys or mediate with a mediator, and you are able to resolve the issues of the marriage between yourselves rather than have the court make these decisions for you. Together you decide what issues are important. Whether you use a mediator and attorneys or just attorneys, if you get stuck on an issue, your respective lawyers will advise each of you so that you can move forward and reach an agreement. Your lawyers will complete the paperwork needed to obtain your divorce. After you and your lawyer review and sign the paperwork, it is filed with the court so a judge can review the documents and sign the divorce judgment. In most cases, the uncontested process should take much less time to get a divorce judgment. Because it is faster, it also tends to be significantly less expensive than litigation.
Parties who choose uncontested divorce are typically focused on resolving the divorce with the least amount of rancor. They are actively engaged in finding an agreement whether through a negotiated settlement or facilitated by mediation. Typically, the parties are more satisfied with the results than those who litigate because they came to their own agreement, they have had a chance to consider the consequences of their agreements, and they are invested in making their divorced lives as livable as possible.
When you and your spouse have issues you cannot resolve such that you need court intervention, the divorce becomes contested. Contested divorces take longer and, generally, are more expensive than their uncontested counterparts. Your lawyers will become involved not only in negotiating issues, but also in motion practice and repeat court appearances to argue for your rights and report how your case is progressing to a judge.
While in an uncontested divorce, the judge has a ministerial role; in a contested divorce, the judge is the adjudicator. Since the judge will make decisions based on the law and not on your unique circumstances, you are ceding control over disputes to the judge rather than negotiating a compromise that may better meet your needs. Sometimes it is absolutely necessary to litigate issues in court, rather than negotiate them, but the decision to do so must be made with the consequences known.
Parties often find themselves in contested divorce actions because of emotional reactions aimed at the other spouse. For example, a party may have a win-lose mentality, in which event, they need a court to grant them a “win.” However, in truth, even a hard earned and expensive “win,” may not be satisfying to that party after judgment.
Using a Contested Divorce to Obtain a Settlement
In the event you and your spouse are able to resolve most, but not all, of the issues between you, the court can be used to facilitate resolution, and/or decide the unresolved issues. A court can also help a recalcitrant spouse produce documents he or she may not otherwise be inclined to produce. In these kinds of cases, you will be in court on a limited basis– just often enough to reconcile the unresolved issues. As such, the court becomes a “tool” to settle your case in a fair and expeditious manner utilizing a time line that is often similar to the faster uncontested divorce timeline.
If you are considering divorce, speak to an experienced attorney about your options. Please contact our office to learn how we can help you achieve the positive results you want.