Navigating Your New York Contested Divorce Case

The vast majority of divorces ultimately end as uncontested divorces, meaning they ultimately settle outside of Court and do not require litigation. A divorce case becomes contested when either: (a)The parties attempt to negotiate a resolution outside of a courtroom and are unsuccessful in doing so; or, (b) The parties know right from the outset that they are not going to be able to negotiate a resolution outside of a courtroom.

There are a number of different scenarios in which a divorcing couple might know from the outset that they won’t be able to negotiate successfully outside of a courtroom. This commonly happens in cases involving domestic violence, or otherwise deeply troubled relationships in which communication has completely broken down. Negotiation might also be a non-starter in cases where there are sharply contested custody issues. These issues are often difficult to negotiate outside of a courtroom - in large part because the stakes and the emotions involved are so high that parties are less likely to be able to reach a compromise.

For instance, let’s say Parent A leaves the family home with the children and wants full custody, and Parent B is contesting the issue of custody and wants the child to be returned. In a case like that, there is often no “middle ground” the parties can agree upon, and mediation outside of litigation is typically fruitless.

In my experience, the most common reasons that couples find themselves in contested divorce situations are: (a) Sharply contested custody or visitation issues (b) Very steep requests for asset distribution and/or spousal maintenance (otherwise known as “alimony”).

In either of these cases, the dispute would have to be so severe that there is no middle ground and negotiation is not possible.

For example, let’s say the parties are trying to negotiate a resolution on custody issues. Often, attorneys will try to recommend that their clients try to find a compromise, and possibly settle for some kind of joint or shared custody. However, in cases where both parents absolutely insist that they want primary physical custody, the idea of joint or shared custody isn’t really applicable. If both parties are absolutely set on fighting for full physical custody and refuse to accept anything less under any circumstances, further negotiation is going to be fruitless.

The same concept applies to contested issues around visitation. For instance, let’s say that Parent A insists that Parent B shouldn’t have overnight visits, or should only have supervised visits, and Parent B refuses to accept those terms. There may be good reasons for Parent A’s insistence: Parent B could have drug or alcohol issues, or perhaps mental health issues. On the other hand, there may be good reasons for Parent B’s insistence: Parent A could be acting out of spite or vindictiveness, or perhaps fabricating reasons to withhold the child from Parent B. In a case like this, you are unlikely to get either parent to budge on their position, and further attempts at negotiation or mediation in search of a “compromise” are consequently unlikely to work.