Contested Divorce & Asset Tracing

"There are three sides to every divorce case -- his side, her side and the truth." -An Alabama Circuit Court Judge

"Every divorce sinks to the level of the most irrational party." -Melvin Belli

What is a Contested Divorce?

A contested divorce is any divorce in which the parties cannot agree on the terms of the settlement. It can involve the parties and their lawyers attempting to negotiate an out-of-court settlement, or it can involve a full-blown litigated divorce in which a lawsuit is filed and tried in a courtroom.

If a divorce is being negotiated, the attorneys generally attempt to resolve the matter without a trial. Typically, a lawsuit is filed by one of the parties, and discovery and settlement negotiations are conducted while the parties anticipate a trial date.

Treat Your Spouse Like the Enemy

To get ready for a contested divorce, remember that your spouse is no longer a loyal friend who is looking out for your welfare. At least for the time being, he or she is the enemy who is trying to restrict access to your children or prevent you from receiving some material asset you believe you deserve. One of the biggest mistakes you can make in a divorce is thinking your spouse will give you what you want if you just ask. Generally, when you are this mistaken, the opposing spouse is only nice as he or she leaves the courtroom with custody of the children or all the marital assets.

Don't get us wrong. A divorce does not have to be ugly from the beginning. But a sense of realism at this time of your life is essential to the successful divorce. Friends, family and former love interests may say bad things about you out of bitterness. They may say things that are not true. What they say may be factual, but there is a good reason for your behavior. No one else may understand why you want out of a marriage. Or on the other hand, they may wonder why you wish to fight so hard to stay with a person who treats you so badly. All of this is part of the alienation and distrust inherent in the divorce process, and you should be prepared for that.

Plan Your Divorce Strategy

From a strategic point of view, all contested divorces should be handled as though they were headed to trial. If settlement efforts are successful and you wind up not going to court, you are miles ahead of the game. If settlement efforts fail, you are prepared for the worst. Fair settlements happen when you obtain adequate information at the start of your case. However, you might not even know about all of the marital assets. You may be relying on your spouse's valuation and how those assets should be divided. If your spouse has not disclosed all of the assets or is keeping other secrets, you may be agreeing to the settlement uninformed.

Unless you can prove that your spouse has hidden assets or otherwise defrauded you, the court usually will not change the agreement after the divorce has been granted.

A few years ago, a dear friend of this law firm gave her husband custody of their child out of fear that the divorce would become contested and the child would have to go through a bitter divorce. She did not hire a lawyer because she thought the husband would play fair with her if she did the same with him. [But the husband had been abusive during the marriage] and once the divorce was granted, the wife found that her husband had been having an affair with her best friend. With facts like these, she could have won custody of her child without much of a fight. Due to the wife's naïve mistake, the husband now has custody of the child and my friend sees her child on a limited basis. The wife now agonizes every day over her bad decision, and her former husband constantly reminds her that he has control over the situation.

This client asked us to specifically tell her story, in the hope that someone else might not make the same tragic mistake. If she had fought for custody of her child, the emotional trauma she is now experiencing would be in the past. She took her one bite at the apple and missed. If you foolishly accept whatever settlement your spouse offers without adequate information or advice, you are dealing from a position of weakness -- and weakness has never culminated in a successful divorce.