A contested divorce is a legal proceeding in which one or both parties disagree on the terms of the divorce.
Unlike an uncontested divorce, where both parties agree on all terms, a contested divorce requires the court to resolve these disagreements.
Key Takeaway: A contested divorce involves legal disputes between spouses over key issues and requires court intervention for resolution.
Steps in a Contested Divorce
- Filing the Divorce Application: The process begins when one spouse files an application for divorce with the court. This document outlines the grounds for divorce. In Australia, the only ground for divorce is the irretrievable breakdown of the marriage, demonstrated by 12 months of separation. It is important to note that the divorce application briefly mentions the parenting arrangements for any children involved; however, it does not include legally binding outcomes regarding assets, children, or support.
- Serving the Divorce Papers: The other spouse must be formally served with the divorce papers. Service must be completed correctly to ensure the process proceeds.
- Response to the Application: The served spouse can respond to the application, either agreeing or contesting the divorce. If uncontested, the process may proceed smoothly. Contesting typically arises from jurisdictional disputes or an insufficient separation period, as divorce requires 12 months of separation to satisfy legal criteria.
- Separate Proceedings for Property and Parenting Orders: Unlike the divorce application, matters concerning property division and parenting arrangements require separate applications and proceedings. These can be filed with the Federal Circuit and Family Court of Australia and are not automatically included in the divorce process.
- Discovery Phase: In property and parenting proceedings, both parties exchange information and documents relevant to the case. This can include financial records, property valuations, and other evidence.
- Negotiation and Settlement Attempts: Before proceeding to trial, there may be attempts to settle disputes through mediation or negotiation. This is often required and can help resolve issues without a court hearing.
- Court Hearings and Trial: If settlement attempts fail, the case proceeds to trial. For property and parenting disputes, a judge will hear arguments from both sides and decide on the contested issues.
Key Takeaway: The contested divorce process involves multiple steps, including filing, serving, response, discovery, negotiation, and potentially a court trial.
Also read: Annulment vs Divorce
Common Issues in Contested Divorces
- Property Division: Disagreements over how to divide marital property, including real estate, investments, and personal belongings, are common in contested divorces. To understand more about how contributions are assessed, visit post-separation contributions.
- Child Custody and Support: Determining where children will live and how much support will be provided can be a highly contentious issue.
- Spousal Maintenance: One spouse may seek financial support from the other, leading to disputes over the amount and duration of maintenance.
Key Takeaway: Common issues in contested divorces include property division, child custody and support, and spousal maintenance.
Costs and Time Involved in a Contested Divorce
Contested divorces can be more time-consuming and expensive than uncontested divorces due to the extended legal proceedings and the need for court intervention. Legal fees, court costs, and other expenses can add up, making it important to consider the financial implications.
Going through a contested divorce can be challenging due to the disagreements between spouses and the legal complexities involved.
Understanding the process, common issues and the importance of legal representation can help you better prepare for the journey ahead. While contested divorces are often more costly and lengthy, they provide a legal avenue to resolve disputes when mutual agreement is not possible.
Key Takeaway: Contested divorces tend to be more expensive and time-consuming due to the need for legal and court involvement.
For those considering a trial separation, it can be a useful step before deciding on a contested divorce, helping to clarify the issues at stake and possibly paving the way for an amicable resolution.
The Role of Legal Representation
Having legal representation is highly beneficial in a contested divorce. Lawyers can provide guidance, represent your interests, and help you navigate the complex legal process. We can also assist in gathering evidence, negotiating settlements, and presenting your case in court.
For expert legal assistance, contact Melbourne Family Lawyers to ensure your rights are protected and your case is handled professionally.
Key Takeaway: Legal representation is important in contested divorces to ensure your interests are effectively represented and to navigate the legal complexities.
Director of Melbourne Family Lawyers, Hayder manages the practice and oversees the running of all of the files in the practice. Hayder has an astute eye for case strategy and running particularly complex matters in the family law system.
