Typically, when we think about a contested divorce, what we immediately believe is the two parties do not agree upon the idea of seeking a divorce. However, since California, like most other jurisdictions, offers no fault divorce, a court is unlikely to deny a final divorce just because one party is unhappy about the possibility.
Contested divorces instead occur when the couple is finding it impossible to agree on issues which require settlement. Some of these include:
- Property division
- Division of debt
- Custody of children
- Parenting plans
- Child support
- Spousal support
When the spouses have a disagreement and cannot find common ground regarding the terms of the divorce, the divorce becomes contested. When a couple can agree on the terms of the divorce, the divorce is considered uncontested.
In some cases, divorces are easy: When a couple cites irreconcilable differences, has no unpaid debt which are greater than $6,000, have no real estate, and when alimony is not a consideration, a summary dissolution can be used to dissolve a marriage. This is the fastest type of divorce.
The High Dollar and Emotional Costs of Divorce
Couples are emotionally invested in the life they have built together. Whether a couple has been married for five years or five decades, the ending of a relationship is far more challenging than walking away. When emotions run high, it is difficult for a couple to agree on the major issues pertaining to their divorce. Not only do these disagreements wreak a significant emotional cost on the two parties, they can also result in unnecessary financial costs.
The fewer issues which need to be decided by the courts, the better off for everyone involved. When a couple can agree on property division, division of debts, child custody and support issues, and visitation issues, the chances are high they will not have to go to court. The couple would draft and sign an agreement and their attorneys can deal with the court filings and approvals.
When Property Division is Contested
California is a community property state. Community property is classified as any assets which the couple came into possession of during their marriage. Exceptions to community property include inheritances, gifts, and settlements from personal injury lawsuits. However, there are cases where community property may not result in assets being equally divided between the spouses including:
- Property acquired before the marriage — when one partner had an asset coming into the marriage, it is considered sole property. During the marriage, providing they have not given up any rights to the property, it remains sole property.
- Pension and profit-sharing plans — in some cases, a spouse has a pension or profit-sharing plan as part of a job they held prior to the marriage and continued throughout the marriage. Generally, only the portion of the accounts generated during the marriage would be considered community property.
- One spouse is member of military — military divorces are subject to “minimum’ time a couple is married. In most cases, a divorced spouse is not entitled to benefits such as pension or medical benefits if the marriage has not lasted at least 10 years.
When Child Custody is Contested in California
One of the most difficult issues parents must deal with in a California divorce is that of custody of the children. Contested child custody hearings, occur when one parent files a request for order and the other files a dissent. The courts will generally appoint a third-party to perform an evaluation and report back prior to the hearing. The judge will then decide on legal and physical custody of the children. Here is what this means:
- Physical Custody — the court may award physical custody of the child to one or both parents. Joint physical custody means the child will split their time between the home of each parent. Generally, this is not a 50/50 division of time. Instead, the court will work with each parent and lay out a schedule for where the child will be.
- Legal Custody – when a parent is granted legal custody, they are charged with making all decision which will impact the child. These decisions include religious training, education, and health care. Unless there is a valid reason to not pursue it, the court will generally grant both parents legal custody to ensure they come to an agreement on these matters.
When one parent is awarded physical custody of a child, a parenting plan (or visitation plan) must be put into place. Unless there are circumstances which would endanger the child, these plans are designed to ensure the child is developing a relationship with both parents, not just the one they are living with most of the time.
Support Payments for Children and Spouses
Supporting children financially until they reach adulthood is the responsibility of both parents. Generally, if one parent has physical custody, the non-custodial parent will be asked to pay support to the custodial parent. When parents cannot agree on a dollar amount, the court will take various factors into account and set the amount of payment. This amount then becomes part of the final decree and is considered a court ordered payment. Failure to make child support paymentscould result in the non-paying party facing contempt of court charges, losing their professional license, and having their income tax refunds seized for payment.
Alimony payments are handled differently than child support. Spousal support is intended to be a temporary bridge until the receiving spouse is able to be self-supporting. Courts will look at various factors including length of marriage, division of assets, earning capacity, and physical health of both spouses before making a determination.
When couples cannot agree on small matters, the bigger issues they are facing can become even more complicated. Generally, the more a couple can agree upon before filing for divorce with the family court, the better for both parties. Whether you are dealing with a contested or uncontested divorce in California, contact The Law Offices of Steven M. Bishop at (619) 299-9780 and schedule a free consultation. You will see why our four decades of serving clients matters.