California Divorce Litigation
If you and your spouse are facing a unilateral or contested divorce, you may have to go to court to resolve your differences through divorce litigation. While you might not like the idea of having to litigate your issues, it may be the only way to secure your best possible outcome.
Divorce has no one-size-fits-all solution. 80% of divorces are unilateral, which makes litigation the most commonly used divorce procedure. But litigation covers a range of legal strategies – some of which involve limited or no court appearances. Litigation simply refers to the act of filing a lawsuit for divorce, even if you end up ultimately agreeing to a settlement.
The litigation process tends to be more adversarial than other alternatives like mediation or collaborative divorce. Divorce litigation may be the best option for successfully ending your marriage if you and your spouse simply cannot see eye-to-eye or communicate effectively.
Every divorce is different and deeply personal. Divorce litigation often has high stakes on the line, especially for professionals with extensive assets and investments. The best litigation strategy for you may not be right for someone else, which is why our lawyers treat every client’s needs with a personally tailored approach.
As your attorney, our Bay Area law firm is dedicated to helping you achieve your goals throughout your divorce. Our award-winning family law team specializes in successfully navigating the unique challenges of high-net-worth divorces. Call our San Francisco offices today at 415.872.1080 to discuss your best options for litigating your divorce.
Pros and Cons of Divorce Litigation
Pros of Divorce Litigation
- You can achieve the outcome you want even if your spouse refuses to compromise.
- If you’re facing an uncooperative spouse or witnesses, the courts can issue legal decrees requiring parties to cooperate with the divorce litigation process.
- Courts have subpoena power so they can make your spouse disclose any assets or records that they’re trying to hide from you.
- You can get a legally binding resolution even if your spouse refuses to appear in court.
- Litigation is often the only option in cases involving domestic violence because it doesn’t involve negotiating or compromising with your abuser.
- The court can issue temporary or interim orders to maintain the status quo or protect the parties during the time it takes for litigation to resolve.
Cons of Divorce Litigation
- Divorce litigation takes time, anywhere from months to even years.
- If a court litigates your divorce, the ultimate decisions and legally binding terms will be decided by a judge who knows far less about your family than you do.
- You give up a lot of control in the decision-making process. Allowing a judge to make important decisions concerning child custody and support, spousal support, and property and asset division can be nerve-racking and uncomfortable. The court may also appoint experts to investigate and evaluate custody and parenting issues in your relationship.
- The divorce litigation process can be mentally and emotionally taxing on you and your family. Family members may end up having to testify as witnesses against each other.
- Litigation is a public matter, which makes your divorce case public record.
How Does Divorce Litigation Work in California?
Stage 1: Hiring a Divorce Litigation Lawyer
As soon as either you or your spouse decide that you want a divorce, your first step should be to speak to an experienced local family lawyer you can trust.
When you work with Moradi Saslaw, we’ll sit down with you in an initial interview and listen to your situation. We’ll ask you to gather all the documents that are relevant to your finances, assets, childcare, and any other marital issues. We’ll discuss all of your goals and concerns and evaluate the best strategy for you moving forward.
Stage 2: Filing Your Divorce Petition With the Court
After the initial interview, your attorney will prepare your divorce petition and file it with the court. In the divorce petition, you will tell the court your desired outcome regarding:
- Child custody and support
- Spousal support/alimony
- Division of marital assets and debts
Your attorney will notify your spouse of the divorce petition by serving them process either by mail, in person, or through your local sheriff’s office. In California, your spouse has 30 days from the time of service to respond to your divorce petition. If your spouse files the divorce petition first, your attorney will help you craft a response within the 30-day timeframe.
If your spouse fails to respond to your divorce petition within the required time limit, the court will grant you a default judgment in your favor with uncontested terms.
Stage 3: Discovery and Exchanging Information
In the discovery stage, you and your spouse will exchange detailed information about:
- A complete report of assets, income, and debts
- Financial information including household bills
- Child custody and parenting responsibilities
- Any other issues relevant to your case
The discovery stage could involve document requests, depositions (out of court witness testimony), or written questions (interrogatories) asking for specific information.
Both spouses are expected to cooperate fully and honestly with discovery. Failing to cooperate, hiding assets, creating unnecessary roadblocks, or giving the other side the runaround could land the offending party in violation of court orders. If the behavior is bad enough, the offending party may even lose on certain terms in the final divorce judgment as a result.
Stage 4: Divorce Trial and Court Hearings
At your divorce trial, the judge will hear both sides of the case in order to come to a decision about all of your issues. You can expect your legal team to:
- Present evidence and arguments
- Call witnesses to support your arguments
- Cross-examine the other side’s witnesses to weaken their position
- Make closing arguments after all the evidence has been presented
You may also have to attend temporary custody, support, or alimony hearings. During the course of your trial, the judge will encourage both parties to settle if possible.
Stage 5: The Final Judgment and Post-Trial Motions
At the end of the trial, the judge who presided over your case will announce their legally-binding decisions in their final judgment order. Their decisions will cover:
- How to divide your marital assets and debts
- Child custody, support payments, visitation, and living arrangements
- Spousal support (alimony) payments
After the judge makes their decision, you will have a limited amount of time to make a post-trial “motion for relief” from the terms of the judgment. If your motion is approved, you’ll argue to the judge why it’s unfair to carry out their ruling as it stands.
Divorce Litigation Example
Below is a generalized example of the divorce litigation process:
Jane Doe is an established CEO at a large tech company. John Doe is a programmer who recently released a successful app after three years of development. The Does have been married for twelve years and have one child aged 10.
Jane and John are separating over accusations of infidelity. Unfortunately, the state of their relationship doesn’t allow for constructive negotiation. John wants monthly spousal and child support from Jane because of her salary, which has historically been much higher. Jane argues that she supported John and the family while he developed his app so she should have part ownership interest. She contests his need for spousal support because of the app’s skyrocketing value. Both parties are asking for sole child custody.
John files a divorce petition and Jane approaches our firm for divorce representation. After an initial interview and collecting key documents from our client, we respond to the petition’s claims with Jane’s positions. During discovery, we request all documents related to the development of the app, which show it was created entirely during the marriage. At trial, our team brings an expert appraiser as a witness to evaluate the market value of John’s app. We argue the app is community property that should be split based on Jane’s financial support contributions.
We also argue that John’s new salary equals the standard of living he enjoyed under Jane’s salary, therefore she should not pay him any spousal support.
The court brings in a child psychologist who testifies that without any evidence of abuse, the Does’ child would benefit from having both parents in their life.
Once the trial is complete, the judge enters their final judgment. Jane gets ownership interest in John’s app and does not have to pay John alimony. Both parents will share equal custody with a visitation schedule set by the court.
John files a post-trial motion for relief and we respond, further solidifying our arguments. His motion is denied. Because of the high cost of appealing the judgment and the low chance of success, John decides not to appeal and accepts the verdict. We refer Jane to a co-parenting expert who can help the couple move forward in a constructive way.
Frequently Asked Questions About Divorce Litigation
How Long Does Divorce Litigation Take in California?
Divorce litigation can take anywhere between several months to years depending on the complexity of your case. Even in the most complicated cases, our dedicated team of lawyers will work to get you the best outcome as efficiently as possible.
Can You Appeal a Divorce Judgment?
Yes. Once a final judgment has been entered, you can file an appeal to have a higher court review the outcome of your case. Your attorneys will help you file a brief with the proper appeals court. Your ex-spouse will then have a chance to submit a response.
Is Divorce Litigation Right for You?
At Moradi Saslaw, we know how much your privacy and family matter to you. Divorce is a challenging process no matter what. But a contested divorce litigation could end up risking all of the things that you hold dearest in your life.
The Moradi Saslaw team of divorce trial lawyers have decades of combined experience in court. Our attorneys specialize in custody, visitation, and parenting issues. We maintain a respected network of exemplary experts in custody, child psychology, forensic accounting, wealth management, estate planning, and mental health. When you work with us, you can expect creative and effective strategies to reach your goals in even the most contentious divorce.
Call our stellar team of San Francisco and Bay Area divorce lawyers today at 415.872.1080 to discuss whether litigation is the best option for you.
A divorce settlement is an arrangement or agreement between two people who have chosen to end their marriage. The settlement serves as the legal document between the two parties that is filed with the State of California and documents the terms of the divorce.
Divorce litigation is a method to resolve your divorce in California family court. If a married couple cannot reach an agreement through other divorce options, litigation is often the answer. Divorcing parties often attempt to avoid litigation (taking a divorce to trial in court) to keep costs down and lessen the emotional stress involved in divorce.
A divorce that allows a separating couple to negotiate the terms of their divorce without the need for a trial in court is known as a collaborative divorce. With a collaborative divorce, couples can work together to reach an agreement on the terms of their divorce - including everything from dividing property and debt to child custody, child support and spousal support.
Divorce mediation is when a married couple seeks the assistance of a qualified and trained divorce mediator to help you reach an agreement on property and debt division as well as issues centering around child custody, child support and spousal support. The mediator will act as a neutral third party, listening to both sides of a discussion and crafting a solution that is accepted by both sides.
A divorce settlement means you and your spouse were able to line out the details of your divorce fairly easily, without the need for a lengthy court trial. Settlements offer a less adversarial and often quicker approach to divorce. The definition of litigation is “the process of taking legal action.” Litigation means you’re going to court. Litigation usually means the divorcing parties cannot come to terms on certain aspects of the divorce and must plead their case in front of a judge, who will rule on the terms of the divorce.
In rare instances, you may not need a lawyer to get a divorce in California. However, having a lawyer on your side to protect your interests is highly advisable. There are lawyers in California that specialize in divorce and know all the ins and outs of the process. Even if your divorce is fairly straightforward, it’s still best to have a lawyer to watch your back.
If you want to set up child custody or visitation rights in California, you will need to first file forms with the court clerk. After you file your forms, you will receive a court date or a date for a mediation meeting. Documents must be formally served to your spouse or domestic partner, who will have 30 days to respond once they receive the forms. If you need to establish custody and visitation rights in California, it’s best to seek the advice of a seasoned attorney.
The divorce process begins when a Petition for Dissolution of Marriage is filed with the Superior Court of California. Under current state law, a California divorce cannot be finalized until at least six months and one day after your spouse or domestic partner receives the Petition for Divorce.
Plan on at least one court appearance, even if it’s an amicable divorce. Some divorces can go fairly smoothly, but you’ll need to appear in court at least once as part of the divorce process in the state of California. More contentious divorces may require numerous court appearances. It all depends on your specific situation. Having a lawyer represent your interests in a divorce can help keep court appearances to a minimum.
Property and other assets that were acquired or existed during the marriage must first be identified and valued, then it is classified as marital or separate. Property can be divided based on a number of factors, like when the property was acquired, how it was purchased, existing tax agreements and even the duration of the marriage. Any prenuptial and premarital agreements that are in place must also be considered.
Spousal support is not mandatory in California. In the Sunshine State, spousal support is gender-neutral, so either spouse or domestic partner can request it from the other. Support is determined through an in-depth examination of your income, expenses, assets and debts. The court looks at each spouse’s income and determines if spousal support is needed, as well as how much should be paid monthly.
The State of California has specific laws that must be followed if you're seeking a divorce. Having a professional lawyer on your side to handle the important aspects of your divorce is highly advisable. Your divorce lawyer can give you guidance on handling your assets, your income, your spouse or domestic partner’s assets and income, and more.