What Is a Contested Divorce?
A contested divorce is when one party initiates the the divorce process while the other may not necessarily want to.
Let's face it: divorce is always difficult. Even in cases of stipulated divorces, agreement does not always account for – or excuse – emotional distress. Understanding the differences between the two may not help you when it comes to the emotional stress or your personal feelings, but it may help you when it comes right down to the divorce process itself.
First, let's cover the grounds for divorce. According to Wisconsin law, the only grounds for a divorce is the decision that the marriage is “irretrievably broken”. This does not need to be an agreement between the couple. It can be a decision made by only one party. Even if one were to contest the grounds for divorce, that individual cannot “block” a divorce from taking place. This is also considered the first contestation of a divorce. However, unless stipulated, all divorce cases are considered by the courts to be “contested“.
The proceedings begin by filing two documents; a petition for divorce, and a summons. The petition must state the history of the marriage and further states the wanted outcome of the divorce. The summons says that a response within 20 days must be made. In the case of contested divorces, temporary orders are usually issued. These orders essentially state a set of temporary rules set forth by the court that both parties must adhere to until the court renders a final decision. In these cases, two more documents have to be filed. They are an affidavit of temporary relief, and an order to show cause. These orders request temporary support, temporary custody, etc. The order to show cause states the date and time of the hearing where the temporary orders will be issued.
After an individual properly files the two documents, the petition and summons, the documents are then served to the family court commissioner and/or the responding spouse. The individual requesting the divorce is the petitioner, the other is called the respondent. Both are parties in the divorce action.
Unless the court makes a very rare exception in light of an emergency, a contested divorce takes at least four months. A full 120 days from the serving of the initial papers, to the final hearing. Most divorces, however, take longer than the standard four months. This is due to several factors. The complexity of the case at hand, whether or not the spouses can agree on most of the issues, and any other things that must be taken care of before the trial. A divorce is not effective – or complete – until the final hearing. There then, of course, is the 6 month waiting period before either spouse can get remarried.
In a contested divorce, like any other, one or both parties may initiate a divorce action. The only time that the state becomes an actual interested party in a divorce action is when either AFDC or Medical Assistance is provided by the state to a dependent. Or if an application has been completed to obtain legal services and filed with the Child Support Agency.
If an action is initiated by only one party, and there are minor children living in the house, a summons served on the responding party must include what is called a notification of availability of information, and must also include the contents of the parental interference with custody law. Also, upon request, the FCC should offer information in regards to the appropriate procedures involved, any primary issues of private family matters, and any additional information on community resources and/or counseling, and statutory provisions.
The summons served on the responding party must also be accompanied by an included document which states the child support percentage standards which are established by the DCF, and it must list the child support standards, as well. In addition, the summons must include a copy of the county's standard parenting plan form.
If the service is by way of publication, any information that needs to be included can also simply be referred to by the corresponding statute number. In the case of a joint petition, no service is required.
As far as the petition for divorce itself, there are several things that must be included in the petition. Any and all pleadings must always first be titled, “In re the marriage of your name and your spouse's name.” It must include birthdates, and the residence of both, the husband and wife. The petitioning spouse should file a separate form containing both parties and children's' social security numbers.
It should also include the following:
- The date and the place of marriage
- All of the facts concerning any prior or pending actions for divorce or legal separation
- Any names and birthdates of minor children involved; any other children that may have been born to the wife during the marriage
- If the wife is currently pregnant
- The UCCJEA jurisdictional information that is required by § 822.29
In addition to the aforementioned information to be included in the petition, you must also include information regarding and previous marriages. You must disclose the details as to how, when, and where the marriage was terminated. You must state that the marriage is irretrievably broken, and whether any agreements have been reached in regards to any support, legal custody and periods of physical placement of children, maintenance, and property division. If agreements have been reached, you must attach copies of this agreement. You must include any relief requests, and include your signature or the signature of your attorney. In the case that it is a joint petition, both parties, or both parties attorneys must sign it.
Automatically, both parties are forbidden from disposing any assets, removing children, harassment, intimidation, abuse, or in any way oppressing the personal liberty of the other party, or any minor child involved.
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