A contested divorce, where the parties don’t agree on one or more important points, is basically not a different process than an uncontested divorce. You actually don’t need your spouse’s consent to divorce them, but if you and your spouse can come to an agreement instead of a judge imposing one on you, you'll probably both be happier. The difference between contesting the divorce and not contesting it comes down to speed. The parties don’t voice disagreements in an uncontested divorce, which makes it faster. Therefore, a spouse in the midst of a contested divorce should focus on ways to minimize the conflict and how to find good counsel to guide them through the conflict, making it as quick and painless as possible.

Part 1
Part 1 of 4:
Asking the Right Questions to a Possible Family Lawyer

  1. 1
    Find out how long they’ve practiced divorce and family law. Just because the law degree on the wall was issued in a particular year doesn’t mean they have the same amount of relevant experience. Lawyers can change specialties and let their licenses lapse. It never hurts to double check.
    • You also want to know how many cases they take to trial, especially if you or your spouse is filing for a fault based divorce.[1]
  2. 2
    Ask them to outline the process to you. You want to ask this question to get a sense of what your obligations and time commitment will be, and their personal case management style.[2]
    • Make sure to find out how you can reach them when necessary, and how often you can expect to hear from them.
    • This is also a good opportunity to ask about the role of mediation in your divorce process, and if this attorney feels comfortable using mediators if preliminary negotiations should break down. Mediation can help resolve an impasse, but if it fails, it can amount to a very expensive waste of time.
  3. 3
    Make sure you know who will be handling your case. Especially at larger firms, the person who interviews the client isn’t always the same person who will be handling your case. Make sure that you’re comfortable with whatever their answer is before you proceed.[3] [4]
    • Experts cost a lot money, so this is a good point to ask them whether they anticipate the need for an expert witness (or two) during the course of your case.
  4. 4
    Ask about fees. After you and the attorney have gone over the case, ask about the anticipated fees. The cost of a divorce varies widely, so you can’t use the cost of a previous divorce or a friends divorce as a guide.[5] Be sure to ask:
    • If a retainer is required. A retainer is an amount of money that contractually obligates your lawyer to you. It establishes the lawyer-client relationship.
    • How often your attorney bills. Some attorneys bill monthly, some bill only at the end of the case, and some work out long term payment plans.
    • Whether your case will be billed by the hour or on a flat fee structure.

Part 2
Part 2 of 4:
Filing for the Right Kind of Divorce

  1. 1
    Choose the kind of divorce that fits your situation. There are two broad categories of divorce, fault and no-fault. Although this was not always the case, all 50 states now offer no fault divorce. A divorce which assigns fault to one party is virtually guaranteed to be contested, and regardless of whether you are the petitioner or the respondent, you will need an attorney.[6]
    • The grounds for a fault-based divorce are things like drunkenness, adultery, abandonment, and cruelty. When fault is assigned in a divorce, it usually follows that the party not at fault has a right to more of the marital assets. Unless your spouse is fine with having blame assigned to them (and having to give up a greater share), then they will contest the divorce. Grounds vary by state, so use a lawyer to investigate the circumstances that apply to you.
    • No fault divorces are inherently less contentious than divorces which assign fault to one party. When fault is unassigned, the breakup of the marriage is usually chalked up to "irreconcilable differences." While this type of divorce can be contested or uncontested, one party isn’t automatically entitled to more of the assets.[7]
  2. 2
    Gather residency information. Regardless of which type of divorce you pursue, you will need to gather certain information. The process for initiating all types of divorces are similar, and there is a great guide to the entire divorce process at File a No Fault Divorce. Establishing jurisdiction (the right of the court to enforce its judgements on you) is common to all divorces, so you can go ahead and get any documents together that prove your residency.[8] Doing so will speed up the process, save your attorney time, and save you money. You will need:
    • Your spouse’s address.
    • Your address.
    • The county in which you and your spouse reside. If your spouse resides out of state, use your county of residence.
    • If you do not have all this information, contact your attorney to determine the best course of action. They may be able to find out some of it using government databases, such as your local office of recorder and deeds.
    • Regardless of where you live now, you will need to establish residency where you file. Usually, you’ll have to have lived there for at least six months to a year. If you haven't, you can wait or file in your spouse's place of residence.
  3. 3
    Get your financial information together. Any divorce will involve some division of assets, so it’s best to go ahead and collect any information that may tend to prove your and your spouse’s financial condition.[9] [10] That information could include:
    • Tax documents.
    • Bank statements.
    • Statements from brokerage firms.
    • Deeds or mortgage documents to real property.
    • Car titles or registrations.[11]
  4. 4
    Gather preliminary evidence. If you must file for a fault-based divorce, go ahead and gather whatever evidence you can to support your claim.[12] The exact elements for establishing fault in each state might differ, but the basic outlines are the same. Although your attorney will almost certainly want to gather additional evidence, it always helps to have as much as you can at the start to of the process. When you do sit down with a lawyer, this will save time and expense.
    • Keep the evidence narrowly relevant to whatever grounds for fault you pursue. For instance, if you make a claim of adultery, then gather emails, pictures, texts, or witnesses that might corroborate your claim.

Part 3
Part 3 of 4:
Communicating with your Spouse

  1. 1
    Keep your distance. You should strive to keep face to face communication to a minimum during the divorce. Little good will come of it. Regardless of whether both parties want a divorce or only one party does, the more often you communicate face to face, the more likely it is your relationship becomes more hostile.
  2. 2
    Think before you speak. Resolve to wait before you respond to anything your spouse has to say during the divorce. If you two aren't communicating face to face, then the only thing it will take to make this happen is a little self-control. Waiting 24 hours before responding to an overture is a good rule of thumb.[13]
    • Make this easier by segregating your communication with your spouse from your everyday communication. Set up a dedicated email account you only use to communicate with your spouse and no one else. Then, buy a prepaid cell phone and only speak with them on that phone.
    • No texting, emailing, or calling while under the influence of any type of drug, especially alcohol. The same goes for letter writing.[14]
  3. 3
    Pretend that you like your spouse. This applies especially when you are in the company of your children, and above all when when you are communicating with your ex.[15]
    • When you're alone or around your friends, say what you want. But when you are around your children, pretend that you like the person you're divorcing. For one, children can't keep secrets, and it will get back to your spouse, and two, your children don't need to hear it. They will come to their own conclusions about their parent in time.
  4. 4
    Don't use your children as pawns or couriers. This is unfair to your children, and it exposes them to issues which they are not equipped to deal with. Divorce is a matter between you and your spouse.[16]
    • Don't withhold visitation because your spouse is late on child support. Just think about it--if you and your ex were still married and they got fired from their job, would you lock your kids in their room and not let them see their parent? Probably not. Your children didn't ask to be born. They didn't ask to have a parent who couldn't pay child support on time. But they need their parents no matter what bills their parent is behind on.
  5. 5
    Temper your expectations. There are rarely winners in a divorce. Each party loses something, because one household is becoming two households. The goal is for each party to get what is fair, not for one side to profit. A lot of ill-will is related to the shock of loss, so keep this in mind when communicating with your spouse.

Part 4
Part 4 of 4:
Reaching a Compromise

  1. 1
    Make yourself aware of the rules. Before you fly off the handle or decide to make your last stand on one particular issue, make sure you understand what the basic rules of divorce are in your state. In particular, you need to know:
    • If you live in a community property state or an equitable division state. In community property states, marital property is divided 50-50. In equitable division states, marital property is divided according to what is fair. Your attorney can advise you on which applies to you.[17]
    • What "marital property" means. Marital property is usually anything that is acquired during the marriage, regardless of whose name is on the title. There are exceptions, but this is generally true.[18]
    • How child support is determined. The modern trend in many states is to award child support according to a predetermined formula, and not according to the judge's discretion. If your state awards child support like that, there's no point in trying to disagree about it.[19]
    • How child custody is determined. Likewise, in some states, the presumption is that custody will be split evenly. In order to deviate from that presumption, one side must show why, or both sides must agree.
  2. 2
    Decide what’s important. If you cannot initially come to an agreement on the terms of the divorce, you might be able to work most of it out if you go about it the right way. Start by making a list of all the items which will have to be negotiated, such as child custody, child and spousal support, alimony, and division of assets and liabilities. Then group then into the following categories:
    • Items which are the most important to you and your spouse. For most people, this is going to be child custody, support, and ownership of the primary residence.
    • Items which are important to one party but not the other. This could include the possession of a personal collection, a car, or a second home.
    • Items which are relatively unimportant to both of you.
  3. 3
    Don’t get stuck. If you and your spouse reach a sticking point in negotiations, let it lie. There are almost always other issues that you can move on to. The issue you disagree on will still be there to deal with, but you can still make good progress with the outline of your agreement.[20] [21]
    • Disagreement creates hostility and suspicion. The longer you linger on an issue that you both disagree on, the less likely it is you will be able to agree on anything. If you’re getting a divorce, the chances are relations between you and your spouse are hostile enough without creating additional reasons for hostility.
  4. 4
    Identify the interests underlying your positions. Instead of focusing on the different positions of you and your spouse, try and identify the interests that motivate you and your spouse to take those positions.[22]
    • The interest at the heart of a specific custody arrangement might be equal time with the children, for example. But the position one party has articulated might not indicate that. If one parent is insisting on a an every-other-weekend custody arrangement that won’t work for another parent, an alternative arrangement that provides for equal time might also work.
    • To make this work, you're going to have to put yourself in your spouse's shoes. Imagine your spouse is considerably older than you and nearing retirement while you aren't. They might insist on retirement accounts that you feel are rightfully yours. While you might be right on the merits, consider that you might be able to get higher value in debts or more volatile assets, like stocks or real estate, in return.

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      About this article

      Kryss Shane, LMSW
      Co-authored by:
      Licensed Master Social Worker
      This article was co-authored by Kryss Shane, LMSW. Kryss Shane is a Dual Licensed Social Worker and Teaching Associate at Columbia University in New York, New York. She has over 25 years of experience as a LGBTQ activist and social worker. She received her Masters of Social Work from Barry University in 2010. This article has been viewed 8,605 times.
      2 votes - 100%
      Co-authors: 10
      Updated: May 6, 2021
      Views: 8,605
      Thanks to all authors for creating a page that has been read 8,605 times.

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