While every divorce has some level of disagreement, many do not have to go to court to resolve these issues and can settle even before reaching the court. Learning the difference between a contested and an uncontested divorce can help you understand the state of your own case and enable you and your spouse to strive for the easiest divorce possible. If you have an agreement as to most difficult issues for your family – custody and -visitation of your children, parenting after the divorce, dividing up your property, Uncontested Divorce is the right option for you with a detailed Settlement Agreement. If, on the other hand, you and your spouse have no common ground and disagree even about the smallest things – you are facing a Contested Divorce and need the court to resolve the multiple issues involved.
The best way to start approaching a divorce is to consult a lawyer. A family law attorney who handles divorces is not required, but he or she can provide you with important information about what to expect and will work hard to protect your interests. Each case requires an individualized approach and what works for your family may not work for someone else.
If the parties cannot come to an agreement about custody, visitation and parenting time after separation and eventually the divorce, the court will decide for them. First, the courts consider both parents equally entitled to custody and equal time with the children. However, if the parties cannot agree to joint custody (legal and residential), the judges will consider the facts of the case including the best interests of the children, the parties’ work schedules, the kids’ school schedules, their health, development and education needs, and the importance of having both parents in their lives. When the children are teenagers, in certain situations, the courts will even take the children’s wishes and testimony of family members into consideration when deciding who the children should live with and who should make legal decisions for them.
Though mothers have been traditionally more likely to get primary custody of their children, the courts are specifically prohibited from considering gender when making custody determinations. Under the law, both parents are presumed capable until proven otherwise, and both parents are considered equally entitled to custody of the children and equal time with the kids.
The courts look at each family situation individually, and if you and your wife agree that it is in their best interest to reside with you and she will take them for extended visitations at other times (like school breaks or during summers), the court will not stand in the way of such an arrangement. However, if there is no agreement, the court will have to make a decision by taking into consideration the entire situation and the best interests of the kids.
A divorce is not always a terrible end to all good things. If you get a strong attorney to fight for your rights, you will not lose everything. The court will look at all the relevant factors in your situation, and will take in consideration that you need to be able to support yourself after the divorce. There may be a way to divide up your marital property to give you enough money to have a comfortable living after your divorce.
My husband is an American citizen and I am here from Poland for many years and overstayed my visa. My husband has treated me badly over the one and a half years of our marriage. He just filed for my green card, and last week we received papers from USCIS that I am approved for my work permit. He threatens to get me deported if I don’t stay with him. He pushes and hits me and will not let me speak to any of my family or friends. I can’t take it anymore, I need to leave. Will I be deported if I divorce him?
You should not stay in a marriage where you do not feel safe and can be exposed to harm, even if your immigration status is in question. If you file for a divorce, you will be entitled to all your rights – the right to spousal support, equitable distribution (splitting up of joint marital property) and even to have your husband pay for your attorney’s fees if he is the higher earning spouse. Immigration law has special protections for victims of domestic violence like yourself where you can get a green card on your own without your husband’s petitioning for you, called VAWA I-360 Self-petition. There are several options and there is a way out – call our firm and we can help you.
Yes, you can absolutely work out a settlement agreement in the framework of your divorce if your wife agrees to take her share of the equity in the house and transfer the house to your name, with both of you and your children remaining in residence after the divorce. However, if your wife changes her mind and does not sign the Settlement Agreement/Stipulation, you have to litigate this matter and have the court resolve this issue.
It is not too late and you can terminate your divorce proceeding at any time with a mutual written agreement between yourself and your husband and the attorneys. If things change for the worst, you can always refile later and will have to start a new proceeding, however.
A contested divorce almost always requires the help of an experienced family attorney, especially if your spouse has hired an attorney, or if there are children’s custody and visitation issues, and difficult financial questions at stake.
A judge may not share your views about the division of property and assets or the custody of your children. If you have to go to court, you need the help of an attorney to ensure someone advocates your side strongly in front of a judge. The court will take into account the length of your marriage, both parties’ needs, each party’s contribution to assets, your children’s needs, and the cause of the divorce to decide how to divide property.
If I go to court with my divorce – is it automatic that I have to split up my property 50/50 with my husband? I don’t think it’s fair that I have to split up my business and my hard earned money with him when I always made more money than him and my parents helped us set up the business in the beginning.
A contested divorce may or may not result in a 50/50 distribution of marital property. Depending on your circumstances, the court may award you more or less than half of property. If your family invested money in your joint marital property, i.e. your business, you may be entitled to a bigger share of its value as it is today. However, the court also looks at the bigger picture – both parties’ earning potentials, how the other property is divided up, etc. If your husband worked for years for the business, then the court may consider that regardless of who put in more in the beginning, the business was transmutated into joint marital property and should be equally split.