You’ve weighed your options, waited till after the holiday season has passed, and are finally ready to file for divorce. Now, you probably have a general idea of the type of divorce you will have: contested or uncontested. Depending on whether or not you and your spouse agree to the divorce, you may need to consider if mediation, litigation, or a collaborative divorce is best for your case.
Uncontested divorces are the simplest and most straight forward kind of matrimonial cases. In an uncontested action, spouses are able to reach an agreement concerning child custody, support, and the division of assets. Uncontested divorces are usually filed, processed, and finalized faster than their contested counterparts because there is less work involved. They are also more cost effective and result in much smaller legal fees.
Even if you believe your divorce will be uncontested, it is still highly recommended that you meet with an attorney prior to beginning an action. Disagreements can arise, especially if spouses have children, or any marital assets or debt. A qualified family law attorney will be able to effectively manage your case, and prepare for any roadblocks that may arise.
A divorce case becomes contested if both parties cannot reach an agreement on either of the following:
- Grounds for divorce;
- Child Custody and Visitation;
- Spousal or Child Support;
- Equitable distribution; or
- Pendente Lite Support.
While preexisting New York State law will ultimately determine any orders concerning the division of assets or support obligations if a settlement cannot be reached, having a divorce lawyer on your side is incredibly beneficial. Contested divorce actions require an in-depth knowledge and understanding of the law and legal system, which only an experienced family law attorney will possess. Extensive motion practice, negotiation, and court appearances are all aspects of contested cases. A divorce attorney will be well-prepared to represent their client’s wishes and best interests throughout the duration of a complicated action.
Mediation and Collaborative Divorce
A great alternative to court intervention in divorce involves mediation and collaboration between parties and their respective legal counsel. Through mediation, divorcing spouses voluntarily work together to settle divorce related issues, developing agreements regarding custody, support, and equitable distribution. Because of its collaborative nature, mediation is considered to be “non-adversarial”, which means each party has an equal voice during the divorce negotiations.
Mediation is more cost effective than litigation, less stressful than appearing in front of a Judge, and completely private. Divorce documents and filings are public record, meaning that anyone can easily access documents at their local court house. Details discussed in mediation, such as financial disclosures or personal matters, are not accessible by the general public because the court house would not have these records.
A successful divorce is a child centered one. The child’s best interest must come first. Mediation, or settlement outside of the court room, allows for this to happen. Avoiding prolonged litigation will help to alleviate any stress, insecurities, and uncertainties a child may feel during their parent’s divorce.
Litigation in Court
Unfortunately, not every divorce action is uncontested and is not able to be mediated. Contested cases typically end up in court, with the outcome coming down to whatever a judge decides is best. Litigated cases require court appearances prior to the actual trial, with a great deal of time spent during the discovery and pre-trial phases of divorce. Financial records must be subpoenaed, Statement of Net Worth’s need to be prepared, and lists of witnesses and cross-examination questions must be drafted and filed with the court.
As with any kind of legal action, litigated divorce cases have both pros and cons. Every document entered into the court’s system becomes public record, so they are easily accessible to non-parties. Litigation can become expensive in a short period of time, due to court and attorney fees. New York City area courts are backlogged, so it can take a long time to actually make it to trial.
However, litigation does have its advantages for feuding couples. Spouses who are unable to reach an agreement on child custody and support, alimony, or the division of assets benefit from having a judge make a final ruling on these issues. This especially rings true when once spouse is intimidated by their ex, or was the victim in an abusive marriage. Overcoming the emotional and mental turmoil that stems from an abusive relationship is challenging, but victims can rest assured knowing that their fear will not cloud their judgment during litigation (as compared to mediation or settlement).
Prepare for Anything
Thoroughly preparing for any situation in divorce is always the best course of action, regardless of whether or not your case is contested or uncontested. The staff at Brian D. Perskin & Associates P.C. has handled countless actions where a simple uncontested divorce went south and became a highly contested matter. The firm focuses their practice on matrimonial and family law, with close attention being given to contentious litigated cases. You can trust us for intelligent and aggressive representation!