Divorce is a highly emotional time for the parties involved. Most of the divorces happen when spouses fail to agree on essential aspects of their marriage. However, they can extend their disagreements into the divorce, making it hard to settle some or all of the aspects of the divorce amicably.
If you are involved in a contested divorce, the help of an attorney is important in helping you and your partner come up with an agreeable solution. Note that, a contested divorce can prolong the divorce proceedings. In some cases, such as contested custody, the court will determine whom to award custody.
Overview of Contested Divorce
Disagreements are common in divorces – most couples will disagree on several issues before the final resolution of a marriage. Some of the common causes of contested divorce include:
- Couples fail to agree to the divorce
- The partners cannot agree on legal matters such as child custody or property distribution
- One or both partners are unreasonable
In California, one of the parties refusing to give a divorce is never a cause of a contested divorce. California operates on a no-fault divorce system, meaning that the person asking for a divorce does not have to explain.
Settling a contested divorce depends on the willingness of you and your partner to negotiate. If neither of you is willing to negotiate, then the court will decide on all the contested issues. Settling out of court is usually the most suitable and cost-effective option. It is also easier for you and any children you have.
However, disagreements are bound to arise. These can be dealt with by filing a contested divorce. When filing for a contested divorce, you can draw up an agreement to show the issues you have agreed upon, as well as matters you would like the court to settle on your behalf.
One of the parties needs to file a petition and serve it to the partner. The partner will then file a response. The paperwork will include information about:
- The duration of your marriage or partnership
- Your belongings
- Your debts
- Information about your relationship
- Spousal support, child custody, and child support
- Domestic violence
You must file a response within thirty days from the date your spouse served the petition. Any extensions must be documented in writing and include the signature of your spouse. You might also need to fill out several forms depending on the matters you would like the court to settle.
Correctly filling out your paperwork reduces the time the divorce takes. In addition, the judge will use the information on your petition when settling the issues.
Once you file all the necessary forms and have had them reviewed, submit the paperwork to the court. Ideally, make two additional copies for you and your spouse. Pay the necessary fees when submitting your petition. Once done, you must serve your partner a copy of the paperwork you filed.
Earlier, we mentioned that you need to provide information about your possessions and debts. You do this by filing financial disclosure forms. These can be submitted together with your response or within sixty days of submitting the response. You must also serve copies of these forms to your spouse or partner.
Declaration of possessions and debts gives you the chance to determine what you own jointly or separately. It makes it possible for the court to divide your property and decide on matters such as alimony and child support. Attach your tax returns for the last two years.
Tempting as it might be, do not lie on the forms or leave out some property. If the court discovers that you omitted some of your property, it might award it to your spouse. In addition, you might have to pay the attorney fees for your partner in addition to fines.
Common Issues in a Contested Divorce
Common issues arise in contested divorce cases. They are usually the most triggering and can often stretch the divorce proceedings. An understanding of the common issues that lead to contested divorces can help you find ways to settle your issues as well. Here are the common reasons for contested divorce:
1. Child Custody
Child custody is a major issue among divorcing couples that have children. Both of the partners want custody and cannot agree to let the other have them. Understanding what the law says about child custody in a divorce can help you and your partner to come up with an agreement that favors your situation and works for the best interests of your children.
The court always rules in favor of the best interests of the child. Several factors guide these interests including
- The finances of each parent
- The time both parents have to devote to the children
- Housing arrangements
- The desires of the children (depending on their age)
- The schooling needs of the child
- The parent best position to provide stability to the child
- The health and safety the children are likely to have with each parent
- The criminal history of both parents
- The suitability of both parents in raising the children (the court will evaluate how both of you approach parenting)
The court awards two types of custody: legal and physical. Legal custody determines the parent who has the right to make an important decision concerning the child. These decisions include schooling, healthcare, religion, travel, residency, and education. Physical custody determines the parent who will live with the child.
In both types of custody, the court can award joint or sole custody. Both parents have the responsibility and right to make educational, spiritual, and healthcare decisions for their children in joint custody. In sole custody, the court awards one parent the responsibility for making these decisions.
In sole physical custody, the court might award the non-custodial parent visitation rights. If you are awarded visitation, you can choose the most convenient schedule when the non-custodial parent spends time with the child.
In joint physical custody, both parents live with the children for a specified time. However, the primary residence of the child is with the custodial parent. Therefore, the non-custodial parent can stay with the children every weekend or one day every week.
When filing for a divorce, parents have to demonstrate how they wish to divide their parental responsibilities. They also have to develop visitation and child custody arrangements that the court must approve.
A family justice counselor or a mediator can help you and your partner fight through the emotions in making these arrangements.
2. Child Support
Child support is closely related to child custody. It is the money each or one parent must pay every month towards the care of the children. Divorce does not end your responsibility as parents to provide for the financial needs of your children.
Where parents leave child support issues to the court, the judge will follow several guidelines to decide the amount of child support. The guidelines include:
- The net disposable income or possible income of the parents
- The number of children you have together
- The time each parent spends with the children
- The deductibles on your income
- Child support for other children from different relationships
- The costs of childcare (e.g., daycare) and uninsured healthcare
Generally, the non-custodial parent usually pays more in child support compared to the custodial parent. The court will make an order to the parents their contribution to the financial needs of the children.
Parents can petition the court for changes in child support when significant changes to the income or time spent with the children increases. You can also end child support when the child is 18 or has graduated from high school. Other cases when child support ends include:
- Upon the death of the child
- The child is emancipated
- The child marries
- The child joins the military
However, the court will require you to keep making child support to adult children who cannot support themselves due to disability.
Alimony is the money one spouse pays to another after a divorce. Usually, the money provides financial assistance to the spouse who stayed at home instead of working. The court determines the value of spousal support depending on:
- The living standards the spouse was used to while married
- The extent to which the spouse can maintain the living standard through his or her income
- marketable skills, the job market and the training or retraining needs of the supported partner
- The extent to which the marriage affected the future earning capacity of the supported spouse
- The contribution of the supported party to the education, training, and career of the supporting spouse
- The needs of each party
- Your age and health and that of your spouse
- Domestic violence including emotional that the supporting party inflicted on the supported spouse
- The tax consequences of the divorce
- The reasonable time within which the supported party can become self-supporting
- Other just and equitable factors
The duration in which you pay spousal support depends on the length of your marriage. The spouse paying alimony must pay for half the duration of a marriage that lasted a maximum of ten years. If the marriage was longer, the court has no determination on the duration of spousal support. However, the supporting party can provide evidence that spousal support is no longer necessary.
The goal of alimony is to ensure that one party does not suffer financially from a divorce. Alimony is especially necessary for spouses who forgo their careers to be homemakers. However, very few spouses are willing to continue supporting their partners after the divorce.
4. Distribution of Property, Assets, and Debts
With emotions running high in most divorces, many spouses cannot agree on how to divide property, debts, and assets. They choose to leave the distribution to the court. One common problem among such parties is identifying community and individual property and assets.
If the major problem is determining who owns what, then a family lawyer can help you understand the requirements of the law. You and your spouse will go through negotiations and mediations with family law experts to help you develop a solution outside court.
One major guiding factor in property distribution is equitability and fairness, not necessarily dividing everything down the middle. For example, one person can get money, while another keeps the property of roughly the same value as the money.
The division of assets and debts begins by listing down all that you own. The next step involves determining whether the property is shared or separate. Community property under California law is that acquired during the marriage and when the couple is living together.
Separate property, on the other hand, is that which the spouses acquired before getting into marriage. Couples who make a prenuptial or post-nuptial agreement can have different definitions of community and separate property. These agreements outline what will be regarded as community property.
However, for couples without such agreements, then the default legal definition of community property applies. Some of the principles of community property include:
- Property acquired during the marriage
- The partners have an equal interest in the property
- Community property is exposed to the debts either spouse acquires during the marriage
- Community property is liable for debts either spouse brings into the marriage except when the wages are in a separate account not accessible to the other spouse
- The spouses are entitled to an equal share of the property upon divorce
Your spouse does not have a claim to separate property, which is defined as:
- Property acquired before marriage
- Property acquired after separation
- Property acquired through gifts or inheritance to one named spouse
Ideally, keeping your separate property separate during the marriage makes it easier to protect it in case of a divorce. However, when mixed with community property, it becomes harder to separate the two. For instance, using funds from a separate account to finance community projects makes it harder to determine the type of property.
You have the burden of proof in showing that the property is a separate one. The courts require that both of you disclose both community and separate property to give the court an overview of the financial position of each spouse. It also significantly affects other issues, such as child support and alimony.
When dealing with property division, it is best to hire an experienced lawyer who has dealt with complex property division cases.
Settling a Contested Divorce
Contested divorces arise when a couple cannot draft a separation agreement together. If you are experiencing this, remember you are not alone. Most couples go through contested divorces, and with some help, they can come up with a separation agreement that works for them. Here are some people that can help you settle your differences in divorce:
You can find a mediator who has no interest in the divorce to help you with your issues. Mediators help divorcing couples communicate with each other in seeking an amicable solution. He or she cannot force or influence the decisions you make.
A mediator works similarly to a marriage counselor. He or she provides an environment in which spouses can listen to each other and develop ideas to deal with their differences.
The frequency with which you hold meetings with a mediator will depend on the disagreements you have. He or she might also meet separately with each spouse where needed.
If you agree with your spouse, the mediator will record the agreement in writing or help you draft a separation agreement.
Another role the mediator plays is to ensure that the decisions you make are in the best interest of each spouse and meet the requirements of the law.
2. Divorce Attorneys
The role of an attorney in a contested divorce is to provide a legal perspective of your issues. The lawyer will explain the laws applying to the issues with which you are struggling. A divorce lawyer can help you by:
- Representing you in court
- Help you and your partner reach an agreement outside court
You and your spouse can negotiate an agreement with the help of collaborative divorce attorneys. Here, each spouse hires a lawyer who provides legal advice and assistance. The lawyers will also meet separately, and sometimes, all the lawyers and clients meet.
The goal of collaborative divorce is to avoid the court. If you do not resolve your issues, then the collaborative attorneys will withdraw from the case. You must hire another lawyer or represent yourself.
Find a Divorce Attorney Near Me
For most people, divorce is a highly subjective and emotional process. The couples might find it hard to fight through the emotions of anger, bitterness, and failure over the end of their marriage. In addition, couples have to plan on how to live as separate beings.
Child custody, support issues, and property distribution are the common areas couples have difficulties in settling. These issues can prolong the divorce proceedings as well as the emotional and financial toll of the process.
However, with the help of an experienced divorce attorneys, mediators, and judges, you can achieve an agreeable settlement for your case. The San Diego Family Law Attorney supports couples going through contested divorces. The attorney will provide you with the legal view of contested divorce in California. Call us at 619-610-7425 for a consultation.