Contested versus uncontested divorce – the latter is far more simple, with generally a faster resolution, too. But what makes a contested divorce?
If you and your spouse have any outstanding issues you need to resolve or assets to divide, chances are high that you have a contested divorce. Divorces among the high-earners of Silicon Valley and San Francisco tend to have a number of complicating factors – from high-value assets to stock options and other compensation packages unique to startups.
If your divorce is contested, you will need the guidance of a family lawyer to:
- Split the assets and debts in your marital estate, and/or
- Handle your custody, spousal support, and child support arrangements.
Filing for an uncontested divorce might be appealing to get the process over with and move on with your life. However, any issues you fail to address properly in your divorce proceedings can come up later on. If you and your spouse rush through the divorce process, you may have to come back to negotiate terms or even go to court years later.
The best approach is to settle your issues and affairs now, with the future in mind – so you don’t have to rehash your separation long after your divorce.
Uncontested Divorce and Summary Dissolution in California
When you have an uncontested divorce in California, you and your spouse can file a joint petition for a summary dissolution of your marriage or registered domestic partnership.
Summary dissolution is a relatively inexpensive and straightforward process compared to other divorce options. Neither spouse is required to make any court hearing appearances and you can get a judgment of dissolution within 6 months of filing your joint petition.
However, you must meet the following requirements to file for a summary dissolution:
- At least one spouse has resided in California for a minimum of 6 months and in the county where they file for 3 months,
- You and your spouse agree that your marriage or domestic partnership has broken down from irreconcilable differences and cannot be repaired,
- You have no minor children between you adopted or born before or during the marriage (adult children over the age of 18 do not count),
- Your marriage or partnership lasted no longer than 5 years up to your date of separation,
- Neither spouse has any ownership or interest in real property other than a short-term residential lease without a purchase option that terminates within a year of the petition,
- Neither spouse nor the community has unpaid debt over $6,000, excluding car loans,
- The total fair market value of all community property assets is under $43,000 and each spouse has less than $43,000 in separate property, excluding mortgages and car loans,
- You and your spouse have executed a property settlement agreement that divides all of your community assets and debts, and
- Neither spouse is asking the other for spousal support or alimony.
Even if you’re filing for an uncontested divorce and summary dissolution, you and your spouse should still retain lawyers to negotiate the details of the settlement agreement you’ll submit to the court. Your agreed-upon terms are much more likely to withstand any legal challenges later if both spouses have attorneys to represent them during the negotiation process.
Although an uncontested divorce has its advantages, you give up some important rights when you take this approach. Specifically, you give up the rights to:
- Ask your spouse for alimony or spousal support, and
- Appeal the judgment once entered and request a new trial.
If your situation doesn’t fall within these narrow parameters or if you and your spouse cannot agree on certain aspects of your divorce, then you have a contested divorce.
The California Contested Divorce Process
In simple terms, a contested divorce means that you and your spouse disagree on some issues that you must resolve before your divorce can be finalized.
- You may have a factual or legal disagreement, and/or
- Either you, your spouse, or both refuse to negotiate or settle on your divorce terms.
You can reach a settlement agreement even in a contested divorce. In fact, the same tools to reach a settlement in an uncontested divorce – negotiation, mediation, collaboration – are available to you in a contested divorce as well. The process in a contested divorce may become more involved or take longer based on the value and complexity of your assets, debts, spousal support, and child custody arrangements.
In a contested divorce, one spouse files a petition with the court requesting the marriage be dissolved. The other spouse will receive legal notice of the petition, after which they have 30 days to respond. The details in the petition and response are crucial to the final outcome of your divorce, covering every major issue you and your spouse must resolve:
- Your assets, debts, income, and bills
- Child custody, visitation, and support
- Spousal support or alimony payments
- Domestic violence and any other issues
After the petition and response, you’ll continue the divorce process with:
- Disclosure of each spouse’s financial situation
- Discovery of relevant financial documents
- Any necessary investigations or witness depositions
- Settlement negotiations or trial if an agreement can’t be reached
- Post-trial motions and final judgment appeals
A contested divorce may take anywhere from 6 months from the date of the petition to possibly years for the most complex divorces with millions of assets on the line. Contested divorces may have additional complications like hidden assets or jurisdiction issues.
It’s critical to have a family attorney involved in your contested divorce. The final terms of your divorce will set the tone for your financial and personal future. Once your divorce is accepted by the court, the terms become legally binding like a contract. With so much on the line, you want to make sure your best interests are represented at every point in the process.