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
The High Dollar and Emotional Costs of DivorceCouples 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 ContestedCalifornia 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 CaliforniaOne 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.