Should I contest my divorce?
Daniel E. Clement is a divorce and family law attorney who has been practicing since 1986 and blogging at the New York Divorce Report since 2006. Daniel uses his in-depth experience to provide sensitive representation for his clients during an emotional and challenging time in their lives. Daniel writes and lectures on family law issues, and he is sought after as an expert in the field by print, television and radio journalists. He represents a wide range of clients frequently needing help with a divorce or a pre-nuptial agreement. Daniel focuses on educating his clients on family law so they're empowered to make decisions and understand what they're owed. Full Bio
Should I contest my divorce?
You have been served with a summons in connection with a divorce action—what do you do?
You must immediately decide whether you will be contesting the divorce. In doing so, you will have to determine whether the marriage is dead, whether the marriage is salvageable and to attempt reconciliation, or whether you will need to contest the divorce for other reasons.
Reconciliation requires cooperation. If your spouse does not want to reconcile, there may be nothing you can do to salvage the marriage. You can contest the divorce, but even if you prevail and the divorce is denied, you cannot force your spouse to live with you or to revive the marital relationship. You will be married in name and legal effect only.
You should be acutely aware that by the time you have been served with the divorce papers, your spouse has, in all likelihood, consulted with an attorney, paid a retainer and filed a summons seeking a divorce in court. You may surmise that this person really does not want to be with you.
By contesting a divorce, you force your spouse to prove, at trial, each and every element of their grounds for divorce. That is, they must prove all of the jurisdictional requirements (the reason the court has the authority to hear the case and render a judgment) and all of the elements for grounds for divorce (i.e. adultery, cruel and inhuman treatment, abandonment for a year or an imprisonment). So, for instance, if the divorce is based on the grounds of abandonment, your spouse must prove that for a year before he/she commenced the divorce, without excuse or justification, that you continuously abandoned him/her.
If you agree that the marriage is over, but there are other unresolved issues relating to the children of the marriage, visitation, child support, equitable distribution of property, spousal maintenance or any other issue, you should contest the divorce. The court can bifurcate the trial. In other words, the court can separate the issues that the parties agree on (say, for instance, to divorce), but address only the issues in dispute—generally the economic issues or the issues related to the care and custody of the children. No divorce will be granted until all the issues have been resolved by trial or agreement.
Suppose, however, that you agree the marriage is over, but not for the reasons alleged by your spouse. For example, the husband alleges he was abandoned by the wife. In reality, the husband not only abandoned the wife, but moved in with another woman whose child he fathered. The wife, in this example, could counterclaim that the husband abandoned the wife and also committed adultery. At trial, each party would have the opportunity to prove his or her case in order to obtain a divorce. If either party sustains his/her burden of proof, a divorce will be granted. Conversely, if neither proves his/her case, both will be denied a divorce.
In making the decision whether to contest the divorce, the party should carefully consider all of the issues to be resolved in connection with the divorce, the available options, the likelihood of success on the merits, and the costs involved in defending the action.
In the end, in deciding to contest a divorce on the merits, you must answer the fundamental question: do you want to continue a martial relationship with someone who does not want to be with you? A successful defense of an action for divorce does not rekindle the marital flame.
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- Jean Kerr
A lawyer is never entirely comfortable with a friendly divorce, anymore than a good mortician wants to finish his job and then have the patient sit up on the table.