How to Contest a Divorce

By Joseph Nicholson

The divorce process begins when one spouse files a petition for dissolution of marriage with a state court. This petition, usually along with a summons and other documents, is served on the other spouse. It is then up to the other spouse to decide whether to contest the divorce. If so, the exact procedure will vary by state, but there are few major steps they all have in common.

File response. Most states have a form on which a respondent (the spouse who received service of the petition) can respond. Filing this document is usually only necessary if he elects to contest the divorce. This document is time sensitive, though, and the original petition and summons should include the date by which it must be filed to prevent a default.

Request and attend a hearing. On the response form, the respondent can show whether she is contesting the grounds of the divorce (adultery, abandonment, abuse, for example) or the terms of the divorce (child custody, alimony). If the grounds are contested, this matter will have to come before the court, so if a hearing has not already been scheduled, the respondent should file a motion to show cause and set it for hearing through the clerk of the court.

Disprove the grounds. The grounds for divorce are fairly consistent from state to state. A spouse can seek a divorce for a number of reasons described in the state laws. The burden of proof falls on the spouse seeking the divorce. So, for example, if a divorce is filed on the grounds of abandonment, and the state law defines abandonment as 18 continuous months without cohabitation, then the filing spouse has to produce evidence of a lack of cohabitation for this length of time. Contesting the grounds is a matter of providing evidence that disproves, or refutes, evidence of the grounds.

Contest the terms. Most states, however, have no-fault divorce laws that do not require any particular grounds. There are therefore no grounds to contest, or disagree on. In these situations, or if the respondent chooses not to contest the grounds, a divorce can be contested on its terms. If the petition said that the petitioner should receive sole custody of children, the respondent might accept the divorce but fight for at least partial custody. When the terms are contested, the situation first goes to the parties for private (through their attorneys) negotiation.

Seek ADR. Alternative dispute resolution, or ADR, is a means of settling problems without having to go before the court, which usually applies fairly rigid standards. ADR empowers a mediator or arbitrator to consult with both parties, separately or together, and create a workable compromise. If the parties agree to the terms, they can sign a divorce settlement agreement and move to make the divorce final.

Get a judicial determination. If the parties cannot agree to the terms of the divorce, if the terms remain contested, then ultimately it will be for the court to decide. The judge has some leeway to consider various factors depending on what terms are in dispute, but will also rely heavily on strict guidelines and precedent.

About the Author

Joseph Nicholson is an independent analyst whose publishing achievements include a cover feature for "Futures Magazine" and a recurring column in the monthly newsletter of a private mint. He received a Bachelor of Arts in English from the University of Florida and is currently attending law school in San Francisco.