When you Want a Mutual Consent Divorce But your Spouse Wants to Contest it


Today around half of all new marriages in USA are likely to end in divorce. The emotional experience of going through a divorce is terrible enough without couples having to fight over custody and alimony in a court of law. This is the reason why mutual consent divorce is the preferred option for many couples breaking up. However if you find that your spouse wants to contest the divorce, here are a few things you can do.

TIP: Read the guide to prevent a break up or get back with your ex.

What is a mutual consent divorce?

When both spouses are able to come to an agreement (either with or without lawyers/mediators/collaborative counsel) about the property, children and support issues, then it is known as divorce by mutual consent. However when one party to a marriage does not want a divorce, objects to the grounds for divorce or disagrees with a proposed divorce settlement, the divorce becomes known as a contested divorce.

If you feel right from the start that your spouse will contest a mutual consent divorce, try and craft a separation agreement with him/her before you go to court. This agreement can include how assets and debts will be divided, how spousal support will be paid (or not) and the arrangement of the couple's shared business concerns. If things go smoothly and your spouse has no issues with the separation agreement, eventually this can be made the basis of a mutual consent divorce. Since your spouse has already been living with the terms of the separation agreement, the transition to a divorce based on the agreement should pose no problems.

Consider other options

Even if you and your spouse cannot seem to agree on the terms of the divorce agreement so as to qualify for divorce by mutual consent, you need not head for the court. There are some other options you can look at which might help you both to thrash out issues of disagreement and pave the way for divorce by mutual consent. One of this is Collaborative Divorce. In this type of divorce the spouses negotiate a deal with the assistance of attorneys who are trained in the collaborative divorce process or mediation. However should the collaborative process end prematurely, the attorneys are disqualified from representing the parties in a later contested legal proceeding. Moreover any information or documents exchanged during the collaborative process cannot be used in a future contested proceeding since the collaboration is a confidential process.

Consider mediation

If collaboration does not work, another option is meditative divorce. In this, a trained mediator facilitates discussions between the spouses who can then thrash out a divorce agreement on their own. The role of the mediator is restricted to assisting communication between and proving information to the couple rather than advising them on any aspect of the deal.

Talk to experts

If your finances allow, see if your partner is willing to accompany you to consult professionals like child psychologists, therapists and finance experts who can prove to be invaluable in seeking solutions to points of conflict which usually have to do with division of marital assets, alimony and child custody. If these suggestions from professionals are welcome to both you and your spouse, it can prepare the ground for divorce by mutual consent.

Be honest with yourself

You may have just reason to file a divorce, probably because he/she has cheated on you or embezzled large amounts of money from your personal bank account. But is it likely that you have allowed yourself to give way to extreme anger and are now demanding provisions in the divorce that are patently unfair on your spouse, like denying him/her any visitation rights to your children or seeking ownership of all his/her immovable assets. Go over your situation and priorities in a calm manner – try and separate real and perceived wrongs. Avoid asking for extreme or unjust provisions in the divorce decree; once your spouse sees that you being fair and just in your dealings, he/she may have no more reason to contest the divorce and be more open to a divorce by mutual consent.

High-conflict individuals

Sometimes though no amount of reasoning, mediation or self-introspection can convince a spouse to arrive at a mutual consent divorce. Most of the times, such spouses are high-conflict personalities (HCP) who delight in creating obstructions and dragging on unhappy, chaotic situations. While not all HCPs have full-blown personality disorders, they share many of their traits such as emotional reasoning, all-or-nothing thinking, minimizing the positive while maximizing the negative, chronic blaming and an inability or unwillingness to take responsibility for their actions. With such individuals, most of the conflict is personality driven. This means that it’s not the alimony, amount of child support, child custody that is the issue here, but the personality of your spouse - By blaming others for everything that’s wrong in their lives they are able to keep the focus off the real problem - that is themselves. So if you are looking for a mutual consent divorce from a partner who has personality disorder like a Narcissist, Borderline, Passive-Aggressive or Sociopath, it is unlikely to happen easily. Such people feed off of conflict and chaos and thus are unlikely to do anything to speed up the divorce process. For many, the only way they know how to relate to others is through aggression, blame and playing the victim. And once that ends, they realize that they would be left with nothing. Another reason why they could refuse mutual consent is because of the tendency to Oppositional withholding the more you want something, no matter how insignificant and small, the more your spouse might find reasons that you shouldn’t have it or actively obstructs you from getting it. The more you want to wrap up the divorce; the more he/ she may dig in his/her heels and tries to delay it.

The only way to deal with such high-conflict personalities is to disengage yourself. Let  your attorney communicate with your spouse; tell your lawyer what your bottom line is and stick to it. Also, choose your battles carefully. Determine what’s most important to you, but don’t let your spouse know. Bear in mind that most of these types withhold to punish. Pretend like you don’t care about the things you care about most and care about the things you don’t really care about. This doesn’t always work, but it may be worth a shot. If you finally do reach a settlement via mediation or another process, insist that your spouse put it in writing or sign a relevant document. Above all practice emotional detachment since this type of personality gets a high when he/she sees others buckling under their constant emotional assault.

Finally if you have tried all possible ways to get your spouse to agree to a mutual consent divorce and he/she continues to oppose it, there is little that you can do but head for the courts. If this happens, try and get all the support you can from your family and true friends. If possible, see a therapist as well as financial expert who will be able to guide you through the emotional and financial maze of a contested divorce.