When a divorce is contested, it means one or both parties in the marriage are unable to come to an agreement on specific issues. A contested divorce does not happen as a result of one party is refusing the divorce. In California, a person can get a divorce even when the other party is opposed to it. It is prevalent for parties to disagree during a divorce process on a few things. Some of the issues that bring about disagreement include custody of children, assets division, or spousal support. If these issues fail to be addressed well, they can cause emotional and financial consequences to the parties involved. When you find yourself in a protracted divorce process, using the services of a Los Angeles Divorce Lawyer will help in resolving the conflict. It is possible that through a lawyer, your once contested divorce can become a collaborative divorce. A lawyer acts as a mediator because most don’t seem to be able to see eye to eye.
Why You Should Work With Your Partner
If you are headed for a divorce, a lawyer will tell you the cost implications of litigation and how time-consuming it is. Dragging the divorce process does not help anyone and can be damaging to the children too. With the help of a lawyer, a couple can discuss and agree on several issues. This agreement will help in moving things faster because your lawyers will have little to argue in court about.
Most of the time, judges will try to remain impartial and fair when making a ruling, but they do not know your family as well as you do. You know and understand your ex-partner, their strengths, and their weaknesses. Moreover, you both can make decisions that are favorable to all. Being able to discuss with your spouse and agree will make each one walk away satisfied and in some cases as friends.
What Happens if a Divorce Is Contested?
When a couple cannot agree, they have no choice but to go for a trial. In some cases, a problem can be so significant that it will be forced to go on a hearing on its own. Whether the matter involves premarital agreement, asset division, or child custody, the court will make a ruling that becomes legally binding to both parties. However, if either party is unhappy with the court ruling, at a later date, one can revisit the court decision. This will mean going through the legal process again with no guarantees of a different outcome. This ultimately makes it better if the parties set their emotions aside and decide to come to an agreement.
Legal Issues in a Contested Divorce
Various issues can cause anxiety and conflict between a couple leading to a contested divorce. Some of these issues may include:
- Division of assets - This happens if the couple had property together what is termed as communal property or even one had property before they met and did not have a premarital agreement. A couple can also be fighting on who gets the house, car, or other things they owned together.
- Child support is another common area of contention - Spouses may raise questions on how their offspring will be catered for upon a divorce. A spouse may feel one is not giving enough or the other is demanding a lot, causing a conflict.
- Spousal support – after a divorce, a couple can agree on who will pay the other spousal support based on their income. However, this brings the conflict in some instances with a spouse saying they should not pay or another claiming they need more support.
- Child custody – this is different from child support. A couple can be fighting on who takes legal custody of their children if any. One of them may claim the other is not fit enough to have full custody or shared custody.
- Illness – If one spouse was getting family cover through their employer, the other spouse would feel vulnerable when the divorce happens.
When these issues arise, a divorcing couple can try resolving them with the help of their lawyers. However, when impossible, the state of California under the family law division can help solve the conflict.
The Procedure of a Contested Divorce in California
The filling process in a contested divorce is similar to that of a typical divorce in California. The partner that initiates the divorce proceedings through their lawyer files dissolution of marriage petition. After filing, the other partner is served and files a petition in response. After this, any of the spouses are allowed to ask for an order with the court. Discovery is conducted, and the case is brought up for hearing until it is concluded.
Discovery Process in a Contested Divorce
Discovery is when a spouse formally requests for some information to be provided by the other partner. Form interrogatories under the family law are questions that are generally previously prepared by the California Judicial Council. Special interrogatories comprise of customized and specially written questions.
Request to produce documents is about asking the other partner to provide particular documents. A request for admission is usually requesting the other party to admit to particular issues as accurate. It can also be a request asking the other partner to ascertain the authenticity of specific documents. An oral deposition is the live session for questioning and answering each other. Depositions are normally conducted under oath. Normally, a deposition is conducted in the conference room of an attorney in the presence of a reporter of court.
Disclosure Process in Contested Divorce
Both uncontested and contested divorces have similar final disclosure and preliminary processes, but with one likely difference. If a divorce is uncontested, the couple may opt to do away with the final declaration disclosure. When a divorce is contested, however, specifically where issues of property go to trial, both parties typically must complete the final closure declarations.
Final declarations and preliminary disclosures are where information is exchanged. The information typically includes assets schedule as well as debts, declaration of each partner’s income against their expenses, and more. If disclosures are mishandled, they can lead to various problems during and after the divorce proceedings.
Getting a Court Date in a Contested Divorce
Through your lawyer, a spouse can request a date to hear the contested divorce case as:
- Emergency request
- Non-emergency request
- A Trial request
With the emergency request, the court will generally issue a date in 48 hours. However, most applications on emergency are generally rejected as they do not qualify as such. Typically, the system of issuing dates in court may issue a non-emergency date that may be months and at best weeks away.
How Long will the Contested Divorce Take in California
The duration of a divorce that is contested can be long or short, but it is primarily dependent on the couple. Even when matters are contested but they are simple enough, the couple can finalize the process of discovery fast and request a date from the court to proceed with the trial. However, depending on the court calendar, the trial date can be pushed far, or if lucky, it can be brought nearer.
Depending on circumstances, for instance, if the issues of contention are complex, a couple can request to have a hearing in the presence of a hired judge or private judge. The process through a hired judge may be quicker and in some cases, less costly. The spouses, when agreeing to use a private judge, they must know the cost to hire him or her and how they will meet the payments.
How to Handle a Contested Divorce Hearing in California
Divorce cases that are contested are just like typical civil cases and are handled in a similar manner. A contested divorced case is controlled by rules found in the California Family Code as well as the Code of Civil Procedure. The couple is allowed to present their testimony in the courtroom. If they have witnesses, their evidence is also submitted. If there is a need for an expert witness, their statement is also presented before the court.
Through their attorneys, the spouses provide exhibits for the court’s consideration. The spouse must lay down the proper process and present authenticated exhibits if they are to be accepted by the court as evidence. After all that, attorneys from both sides offer their closing arguments.
Although this is how it should happen, sometimes it may work differently, especially with temporary orders.
Overview of Child Custody Law in a Contested Divorce
It is a common belief that contested child custody is usually against the best interests of a child. If the child’s parents can set aside their differences and come to a mutual agreement about the welfare of the child, it is important. However, this is not always the case. Some circumstances require custody litigation to protect the interests of a child. The parents should check on the merits of the issues and if they can be solved between them instead of court. If the contention is brought to trial, the court is supposed to use the child custody laws in ensuring the protection of the minor.
If the issue of child custody is a bone of contention in a divorce, the lawyers from both sides will sit down with their clients and evaluate various facts that include:
- The history of how each parent has related to the child to date
- If there is evidence to support neglect or presence of abuse
- Any details pertaining to the education, health, safety and general wellbeing of the child
- Evaluating the current custody arrangement between the parents
- An analysis of the future for the child that is based on their best interest.
Custody and Status Quo
If the parents already had an arrangement or a schedule that they followed regarding the children, and it was working to their interest, the court may consider the status quo. However, this does not mean that the judge must follow what the parents did. What the custody laws emphasize on is providing the child with continuity and stability. For this reason, the status quo is considered in matters of determining child custody.
Exceptions to the Status Quo
For the parent that moves from the family residence, it is important that they make an effort to parent their child regardless of their current living location. The custody law does not allow a judge to make considerations regarding the relocation of a parent from the family home if:
- It was over a short period
- The absent parent that relocated from the family home showed interest in visitation or custody of the child
- A parent continued to make an effort to maintain communication and contact with the minor
- The behavior of the parent does not show that they had an intention to abandon the child
The law also tries to make sure that temporary absences will not be used unfairly against a parent, and it is crucial in the interests of the child.
Assuming a father has joint custody over the child with the mother but goes to military service. Automatically the primary custody of the child falls to the mother, but no legal modifications of this fact are made. The law states that the child was just left with the mother while the father was on active duty.
Should the father return, the mother cannot sue for sole custody of the child by claiming the father was away. The father did not abandon the child but was away on service. However, if other reasons may be crucial to the interests of a child, the court can then consider them.
The preference of a child in a custody case has become important in California. The law allows a child to say what they want the court to assert or whom they prefer to live with. However, that is not the only thing that will guide the court’s decision. The court will take into consideration the age or maturity of the child, the influence of a particular parent, the role of alienation, and conditioning. These issues, together with the preference of the child, can help the court to decide on custody matters.
Spousal Support in California or Alimony
This is another issue that is responsible for contested divorces in California. When a couple is facing a divorce, one may be asking themselves the following:
- Can they afford to keep the family home
- Will they be able to meet their financial obligations and pay bills
- Will they be able to afford health insurance
- Will they be able to save for their retirement
When these thoughts are in one spouse’s mind, they are bound to cause anxiety and fear that may lead to the contesting of a divorce. Couples getting a divorce must agree on the terms of how one partner will support the lifestyle of the other upon divorce. Alimony in the state of California is neutral to gender and is based on need. It is intended to provide aid to the partner earning less through the transition from marriage to being single. There is, however, no set time as to when one spouse will stop paying the other alimony.
The state of California, however, has issued guidelines to help determine the alimony to be paid. The couple needs to come to an agreement, but if this proves impossible, the court can help in the determination.
Division of Property after Divorce
How to share property or assets belonging to a couple is another area that brings contention in a divorce. The community property laws in California state that the debts and assets acquired by a married couple during their marriage belong to both of them equally. This, by extension, means that both debts and assets must be equally divided between the couple upon a divorce.
Couples that are unable to agree with this will have contention in their divorce and may move to court for a determination. A couple in the division of their property must follow three steps. These are:
- Determination ownership of the debt or assets. Is it separate or marital?
- Determination of the true value of the marital or communal assets
- A decision on agreeable division criterion of the property
Once a court has determined these three aspects, it will, therefore, be ready to make a ruling on the division of the couple’s assets and debts.
Find a Los Angeles Divorce Lawyer Near Me
The process of a divorce can be both emotionally and financially draining to the individuals involved. The presence of charged emotions can cause partners not to agree on specific issues that are fundamental to them. Contention in divorce is common and can be draining. However, with a good lawyer, you can turn a contentious divorce into a collaborative effort. Should the contested issues in the divorce force you to seek a trial, you need to hire the services of a lawyer to present your grievances articulately. Talk to us at Los Angeles Divorce Lawyer and let us help you protect your interests. Call us today at 310-695-5212, and we will gladly take up your case and guide you through.