A “contested divorce” (as opposed to an uncontested divorce) is one in which the parties are in disagreement as to one or more of the considerations necessary to conclude their marriage. It may refer to a situation where one of the parties does not want the divorce, or may refer to a situation where both parties agree that a divorce is desirable, but cannot agree as to specific issues such as grounds, the division of assets and debts, spousal support, child custody or child support. In a contested divorce, it is necessary for the parties to begin litigating their case until they resolve these issues by agreement or a Court can rule upon them.
Almost every divorce begins as a contested divorce. However, that does not mean that the parties will ultimately require a full trial where a judge decides all of the issues discussed above. In Tennessee, the divorce process is designed to encourage parties to resolve these issues on their own accord, and in fact, the vast majority of cases are successfully settled or mediated without a trial.
Based on my own experience, I find that divorcing parties tend to approach a contested divorce in one of two ways. The first is what I call the “scorched earth” approach. In this circumstance, the divorcing spouse launches every possible allegation they can in the most confrontational way possible. The apparent intention of this approach is to so overwhelm the other party that they agree to their spouse’s terms.
While such an approach may occasionally be necessary, I always prefer and encourage a more resolution seeking approach. Because litigation is extremely expensive and emotionally-draining, and because in reality most divorces are ultimately ended by agreement, I believe it is important to frame a case from Day 1 in such a way as to encourage a timely and cost-effective resolution of the marriage. The fact remains that every dollar spent on litigating your case is a dollar that neither you or your spouse will retain after the divorce. And every dollar spent on divorce counsel is a dollar that cannot be spent on food, clothing or gifts for your children.
While one party might enjoy the emotional empowerment that the “scorched earth” approach can give, the fact remains that this encourages the other person to respond in kind. The person facing such an approach will often respond by choosing to fight back as hard and viciously as they’ve been attacked. This almost guarantees that the divorce will not occur until a great deal of time and money have been spent working the parties back to a position where they are able to reach a reasonable agreement.
The “scorched earth” approach is particularly unwise when the parties have minor children. No matter how little regard you have for your soon-to-be-ex, if you have children together, the fact remains that you two will have to deal with each other for many years to come. The repercussions of unnecessarily combative litigation can have emotional and financial consequences that last a lifetime. Whereas parties that are able to work together for their mutual best interests (and those of their children) are often able to compromise and overcome any minor issues that arise. At some point in your life you will need some consideration from your ex-spouse (for example, an extra day of custody when a long-distance relative is in town). The attitude with which you approached the initial litigation may determine whether such a compromise will require a simple phone call … or a court order.
If you have any questions regarding this or any other issues, please feel free to call me at the number listed above, send an email, or use the contact form.
The Mason Family Law Firm represents clients throughout Middle Tennessee, including Davidson County, Williamson County, Dickson County, Cheatham County, Rutherford County, Maury County, Wilson County, Sumner County, and the cities of Nashville, Brentwood, Franklin, Murfreesboro, Lebanon, Gallatin, Goodlettsville, Hendersonville, Mount Juliet, Smyrna, Spring Hill, Ashland City, Kingston Springs, and others at clients’ request.