In this Article
(click a heading below to go right to that section)
- Contested Divorce on Long Island: A Background
- Key Differences Between Contested and Uncontested Divorce
- If Contested Divorces Are So Difficult, Why Get One?
- Contested Property Division
- Contested Alimony or Spousal Support
- Contested Child Custody and Visitation
- Contested Prenuptial and Postnuptial Agreements
- Contested Paternity
- How to Contest Divorce Issues
- Is an Attorney Necessary for My Long Island Divorce?
- Contact Hornberger Verbitsky, P.C. Today for a Consultation
How to Prepare Yourself for a Contested Divorce
Contested divorces can be nightmarish. Ex-spouses refusing to compromise on principle, arguments over money, and the manipulation of children make an already difficult situation harder, and in some cases, seem impossible. If you’re expecting to go through a contested divorce on Long Island, it’s critical that you get familiar with New York divorce law and do your best to prepare for a multitude of outcomes. Here’s what you need to know.
A contested divorce simply means a divorce where an agreement cannot be reached between ex-spouses on one or more issues. Often, contested divorces proceed to litigation, where a judge will make decisions on the behalf of the family. As basic as the definition is, however, a contested divorce can be time-consuming, costly and emotionally draining. It’s important to understand when a contested divorce is necessary, when it isn’t, and how you can get legal support throughout the process of dissolving your marriage.
There are some core differences between contested and uncontested divorces that are important to understand going in. Whereas a contested divorce means that ex-spouses do not agree on various issues related to the divorce, an uncontested divorce means the opposite — ex-spouses generally agree on most, if not all matters, including child custody, visitation, property division, and more.
An uncontested divorce can take place in a variety of ways, most often via collaborative divorce or divorce mediation, both of which generally occur outside the courtroom. By contrast, a contested divorce is usually litigated in court under the ruling of a judge.
Contested divorces also tend to:
Cost more than an uncontested divorces
Take more time than an uncontested divorces
Are more difficult emotionally
Are harder for children to process
‘If you stand to gain more from litigating your divorce than it will cost you, or if your spouse proposes arrangements that are simply unacceptable to you, it may benefit you more to contest the issue(s).’
While an uncontested divorce is often much easier than a contested one, it’s not necessarily the best option for every family. If you stand to gain more from litigating your divorce than it will cost you, or if your spouse proposes arrangements that are simply unacceptable to you, it may benefit you more to contest the issue(s). High net worth divorces, for example, are often contested because spouses strongly disagree on how to distribute assets. An experienced Long Island divorce attorney can help you understand if and when contested divorce is the best option for you and your family.
When a married couple shares property, it must be divided between the two spouses at the time of the divorce. The laws regarding how marital property is distributed varies from state to state. New York favors equitable distribution, or the fair but not necessarily equal distribution of property. If you and your ex-spouse agree on how to split your assets, you can submit it in writing to a judge, who will issue a formal decree.
If you and your spouse cannot reach an agreement about how to separate your property, this aspect of your divorce becomes contested. Even if you agree on other aspects, such as child custody or alimony, but disagree about property, you’ll likely need to litigate. The fewer assets upon which you disagree on the method of distribution, the less time you’ll need to spend in court, so don’t be afraid to get granular with your ex-spouse beforehand. For example, if you agree on who gets the second vehicle and the boat, but not the house, you only need to go to court to resolve the issue of who gets the house.
Evidence that can help you secure property that is rightfully yours is critical. If you can, bring documentation of property that is separate (not marital property), or proof that awarding you the property as requested would be fair and equitable.
Alimony or Spousal Support is a payment made from the higher-earning spouse to the lesser-earning one in an attempt to provide a financial cushion during and immediately after the divorce. Alimony can continue until the lesser-earning spouse gets back on their feet, often after obtaining additional training or education to re-enter the workforce. Rarely, alimony can be permanent.
If your ex-spouse believes they are entitled to alimony and you disagree, you can contest this issue in court. You’ll need to provide your financial information and a number of details about your marriage, including its length and the lifestyle to which you have become accustomed. A judge will consider a variety of factors and make a determination about whether alimony will be awarded and if so, how much.
If you have the right to alimony after your divorce and your ex-spouse contests the issue, you may need to pursue litigation to force a decision. Be aware that in doing so, you’re not guaranteed to be awarded alimony in the amount you request or at all. However, if you have compelling evidence that you’re entitled to the alimony you’re requesting and your ex-spouse has the ability to pay, it’s more likely that a judge will rule in your favor.
‘If you and your ex-spouse disagree on custody and visitation arrangements, you’ll need to attend an emergency court hearing. A judge will issue temporary custody and visitation orders, which need to be followed until the next hearing, where additional evidence can be presented and the issue of custody can be more carefully evaluated.’
Child custody and visitation are perhaps the two most contested issues in Long Island divorces. These matters are wrought with emotion, and parents can vehemently disagree on what custody and visitation arrangements are in the best interests of their children.
Unfortunately, contested child custody can be difficult to resolve. New York, along with most other states in the U.S., believes that continuing a relationship with both parents, except in cases of neglect and/or abuse, is what’s best for the child. This means that custody and visitation issues can go back and forth for years, and in some cases, until the child ages out of the system. Contested custody tends to be slower to resolve than other contested issues; for example, it’s far easier to simply award each spouse a fair amount of property than it is to decide with whom a child should live and when they should see their other parent.
If you and your ex-spouse disagree on custody and visitation arrangements, you’ll need to attend an emergency court hearing. A judge will issue temporary custody and visitation orders, which need to be followed until the next hearing, where additional evidence can be presented and the issue of custody can be more carefully evaluated.
Temporary custody is typically awarded to the parent who has previously been the child’s primary caregiver, so long as they are considered safe and have the ability to provide for the child. Often, the court’s immediate goal in awarding temporary custody is to disrupt the child’s life as little as possible.
‘Ideally, the purpose of a prenuptial agreement is to eliminate the need for a contested divorce.’
If you have a prenuptial or postnuptial agreement, this document should outline how you and your ex-spouse are to proceed with the divorce. It may cover how marital property should be divided, as well as under what circumstances alimony will be paid and how much.
Ideally, the purpose of such an agreement is to eliminate the need for a contested divorce. How all of the matters are to be handled, besides child custody and visitation, are clearly outlined in the agreement, leaving little room for argument. In many Long Island divorces, the prenuptial or postnuptial agreement can help speed along the process of divorce, keeping both time and cost to a minimum.
However, the prenup or postnup itself can be an issue of contention. One spouse may disagree that the prenup is valid at all, or they may suggest that the agreement is so unfair that it should simply be dismissed. For example, if a prenuptial agreement leans heavily toward the benefit of the higher-earning spouse, the lower-earning spouse may argue that the prenup is invalid because it was signed under duress, or they weren’t fully aware of what the agreement contained.
In some cases, a judge may rule a prenup or postnup invalid, after which the distribution of marital property and the awarding of alimony will proceed according to New York law.
In some divorces, paternity may be contested. This is a rare issue, but it does arise from time to time. In male-female marriages where the couple shares a child, the male spouse will generally be considered the biological father, particularly if his name is listed on the birth certificate.
However, if the mother of the child contests paternity at the time of the divorce, she can pursue a paternity test. The father can do the same if he suspects that he may not be the biological father of the child and does not want to be ordered to pay support for a child that isn’t his own.
Paternity tests must be done in a hospital or lab setting; home paternity tests are not considered admissible in court. Usually, the spouse that requests the test pays for it, however, a judge may order the other spouse to absorb the costs in some cases. If the paternity test indicates that the male spouse is the biological father, the mother will be able to pursue child support. On the other side of the coin, the father can assert his rights to contact with his child.
If the test indicates that the male spouse is not the biological father, he cannot be made to pay child support, nor can he assert the right to contact with the child. The mother, however, may choose to willingly facilitate a continued relationship.
‘If your ex-spouse contests one or more issues of the divorce, you’ll need to either negotiate with them in an attempt to reach a compromise they’re willing to accept, or you’ll need to pursue litigation.’
If there’s any part of the divorce agreement that you’re uncomfortable with, you can refuse to sign until it’s amended to your liking. You can negotiate with your ex-spouse and potentially reach a compromise, or if you’re unwilling to budge on the issue, you can continue to refuse your signature. This forces your ex-spouse to bring you to court to get the issue resolved, where a judge will make a decision on your behalf after considering both sides and the evidence at hand.
If your ex-spouse contests one or more issues of the divorce, you’ll need to either negotiate with them in an attempt to reach a compromise they’re willing to accept, or you’ll need to pursue litigation. Regardless of which side of the contested divorce you’re on, make sure you have solid evidence to back up why a judge should agree with you and issue a ruling in your favor.
The short answer is yes, for any divorce. However, if it’s contested, it’s even more critical that you have adequate legal advocacy. An experienced divorce lawyer can help ensure that your ex-spouse isn’t hiding assets, that your children’s custody and visitation arrangements are in their best interests, and that your rights are fought for. You can be confident that your ex will have a strong legal team at their side — shouldn’t you?
Don’t wait to get legal help if you suspect a contested divorce is on the horizon. You need time to learn about your available options and to prepare for the upcoming legal battle. With the right attorney in your corner, a contested divorce doesn’t have to be the end of the world — it can be the beginning of your next chapter. Contact Hornberger Verbitsky, P.C. today for more information about contested divorces on Long Island or to schedule a free consultation at 631-923-1910.
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