Uncontested divorce in California can be quick in length, efficient in cost and far less stressful than the contested counterpart.
First, great job being here. Just the fact you are reading this page is a credit to you. You want to get your divorce case resolved without litigation.
Anytime you can avoid the court process, save time, money and stress and still get a fair result, you are on the right track. We promise you this detailed look at the uncontested divorce process in California will not disappoint you.
We hope you enjoy it although nothing in this article is intended as legal advice and it is not a substitute for advice from an experienced California divorce lawyer regarding your specific facts.
You are going to have questions. That is normal. It would be weird if you didn’t. Look to the top right of the page for the words “contact us.” Just click on that and all of our family law firm’s information will come up. Pretty easy. We will provide you with an affordable strategy session.
A little introduction…
Who are great candidates for an uncontested divorce in California?
Uncontested divorce in California is perfect for the husband and wife who do not hold strong, bitter feelings toward one another and are able to listen to logical, legal advice with the big financial and life picture in mind.
How does an uncontested divorce help the children?
Uncontested divorce cases are ideal for children of the marriage because they allow them to not become entangled in the process, each parent’s hostility and emotions and brings to the children stability and continuity so that both parents can focus their attention on raising the kids separate but together through co-parenting and communication, consistent with the children’s best interest.
California child custody laws put the children’s best interest as the most important factor when evaluating whether to order joint or sole legal custody, physical custody and parenting time so it should be at the forefront of each parent’s priorities.
Is an uncontested divorce in California a good fit for every type of case?
Uncontested divorce is not for everyone. It is difficult in serious domestic violence or child abuse cases or those where one spouse is hiding assets or diverting income. Also, if you are divorcing a narcissist wife, a narcissistic husband, or dealing with a parent who is alienating the children from you, an uncontested divorce may be more challenging.
Now, let’s get to it…
In this page, we will discuss how an uncontested divorce can resolve the most common issues that occur in family law cases.
After each category, we will address options available to the spouses in resolving the divorce case as well as some of the problems that we have seen arise when resolution has caused special challenges.
Child custody and parenting time in an uncontested California divorce
Resolving a child custody case as part of an uncontested divorce is an essential path to peace. No other area of divorce can get more contested and emotionally volatile than child custody. Parents also stress about the best time to divorce with kids and generally need to get that resolved among themselves before talking with the children about divorce.
The best way to resolve child custody cases is for the parents to first meet and confer together and determine what schedule allows both of them to enjoy frequent and regular contact with the children. Because California family law favors joint legal and joint physical custody arrangements, the settlement process regarding custody should start with that in mind.
Fathers especially should keep this in mind because dads tend to think there is an inherent gender bias in child custody cases when there is not. Fathers should be mindful of their rights, not just for their benefit but for the benefit of the children. Regardless of whether you are a father or mother, no parent who wants what is best for his or her children will attempt to limit the other parent’s time with the kids when he or she knows the other parent is not a risk to the children’s health, safety or general welfare.
The parents should look at the following issues after having an opportunity to review, with their respective lawyers, the Orange County parenting guidelines.
Even if you do not live in Orange County, the parenting guidelines can be a very valuable source of information concerning different custodial arrangements that offer advantages to specific factual situations. The issues that parents should discuss include but are not limited to:
1. Each parent’s work schedule or outside-home commitments and what impact that has on time with the children.
2. The children’s school and extracurricular activity schedule.
3. The distance the parents intend to live apart from each other and what impact that will have on pick up, drop off, both to and from home, school and activities. This is usually part of the same discussion about which parent is going to move out as a result of the divorce.
4. What the status quo has been for the parents before separation and how much of that can or should be maintained going forward, if consistent with the children’s best interest.
5. Any concerns related to the children’s health, including any special needs the children may have in this regard.
6. An evaluation of the children’s educational goals and status. For example:
- Will the children attend public or private school?
- If private school, will that cost be divided or factored into the support calculation?
- Do the parents anticipate the children to remain at the same school for a number of years or is there a transition coming and what impact that transition will have on the custodial arrangement, if any?
- How will responsibilities such as assistance with homework be delegated and divided between the parents and how will communication take place related to both studies and school activities between the parents?
7. An evaluation of child custody holiday schedules as well as special days, such as birthdays, in the overall custody schedule.
8. The level of flexibility the schedule will have pursuant to the parent’s mutual agreement to modify it.
9. How much say older children (children over the age of 14) will have on the custody issues and whether your teenager’s choice and input on custody will be considered.
In an uncontested divorce, parents should also speak about the following and try to come to a consensus.
1. Participation in religious activities.
2. Beginning or ending any mental health counseling or therapy including psychological or psychiatric care.
3, Selecting a doctor, dentist or other healthcare provider, except in emergency situations where a parent needs to act immediately to protect the child’s health.
4. Out of state or out of country travel and what restrictions will be placed on it. It is wise to talk about vacation time and how much notice is required, especially if the child is going to be taken on vacation on the other parent’s time. If that happens, priority should be set in even versus odd years for each parent.
5. If either parent is going to have any special decision-making authority because they are in a much better position to make decisions, this should be specifically stated. This sometimes happens related to school or medical decisions.
6. The parents should discuss notice to the other in the event the child needs any examination or treatment under one parent’s watch. This is especially true if the child needs specific medication that has been prescribed.
7. The parents should ensure that each of them are designated as the contact person at the child’s school in the event of an emergency.
8. It goes without saying but neither parent should be able to change the child’s last name without the consent of the other parent or a court order and the child’s legal name should always be used on all medical school or related records.
9. If there is going to be specific restrictions regarding issues such as drinking alcohol or smoking cigarettes around the child, those should be laid out. The typical order states the child shall not be exposed to secondhand smoke and neither parent shall drink alcohol during their visitation with the child or within 12 hours before, although this provision is more for situations where one or both parents have a substance abuse issue.
Uncontested divorce in California and child support
If you and/or your spouse are W-2 employees and your wages and salary are easily computed by looking at pay stubs, child support should be the easy.
There is virtually no reason for there to be a child-support dispute between you and your spouse in such a situation unless there is a great difference of opinion regarding the parenting time each of you has with the children or you are embroiled in a custody battle.
Child support in California is simply calculated using guideline factors which are made simple for parents, lawyers and judges through the use of computer programs designed to compute the guideline factor. These computer programs act as a child support calculator and provide the parents an exact child support number.
In addition to the guideline amount, an uncontested divorce should also include:
- the division of uninsured medical, dental and other health-care expenses,
- a clear statement about the parent or parents taking responsibility for providing health insurance coverage for the children, including payment of premiums,
- division of employment related child care costs including verifying the dollar amount of the child care and the identity of the child care provider, and
- payment of non-childcare related expenses such as extracurricular activities, private school tuition or extraordinary expenses related to special needs of the children.
Some of the provisions are mandatory and the court must provide for them in the child support order. These include, as two examples, maintenance of health insurance as well as payment of uninsured medical and healthcare expenses.
It may be better not to rely on the “minimum” necessary but bring clarity to such an order for expenses you reasonably know or should know will be incurred.
How do the parents get to the point of settling child support in an uncontested California divorce?
It is best that parents exchange completed income and expense declarations which include, at a minimum, the previous two months of pay stubs.
We would prefer the parents exchange at least 12 months of pay stubs so there is a more documented history of each of their incomes and an evaluation of any fluctuations that may exist.
Parenting time can be difficult to calculate in terms of percentages. However, our experienced divorce lawyers can assist you with that as we have specific tables and charts that we use to determine what your custodial schedule of the children amounts to in terms of “percentages of time” for child support purposes.
Other factors the parents should specifically discuss is what will happen with the child dependency exemption and child tax credit. We have written an article on this subject about IRS Form 8833 and releasing the child tax credit and dependency exemption. Please read it to become more aware of how do you can control the dependency exemption and tax credit each year by your agreement and by completion of the proper IRS forms.
Child support’s duration is set by California statute although parents are free to extend child support beyond the court’s jurisdiction.
Child support typically lasts until your child is 18 years of age but that is only if your child has graduated from high school. If your child is 18 and still a full-time high school student, residing with either you or the other parent, then child support continues until your child graduates from High School or reaches the age of 19 or your child dies, marries, becomes emancipated or, under certain circumstances, becomes self-supporting.
If the parents extend child support beyond that, they should do so with retention of an experienced lawyer in child support matters to ensure proper language is drafted.
Is there such a thing as unmodifiable child support and can we agree to it?
Parents cannot agree to unmodifiable child support although they are free to agree to child support below or above guideline. Such child-support above or below guideline is always modifiable. Typically child support below guideline can be modified at any time and without the need to show a significant change of circumstances. Child-support above guideline typically requires a showing of a change of circumstances.
How do we figure out what guideline child support is in an uncontested divorce?
In any agreement the parents reach, care should be taken to lay out the guideline factors that were inputted and used to arrive at the child support guideline formula. This will help in any modification proceeding so the judge knows what factors were taken into consideration when arriving at the child support number. This includes but are not limited to:
- Number of children
- Percentage of custodial time
- Number of federal exemptions claimed by each parent
- Each parent’s tax filing status (head of household, married filing separate, married filing joint, etc.)
- Each parent’s taxable and non-taxable income
- Health insurance premium cost for the parent that is covering the children
- Mandatory retirements deducted from pay (key word being mandatory and not discretionary)
- Mortgage interest and property tax deductions
- Extraordinary health care expenses
- Hardship deductions for extraordinary health expenses, catastrophic losses that are uninsured and the parent’s natural or adopted children’s minimum basic living expenses. The latter relates to children from other relationships or marriages who live with the parent and whom the parent supports, separate and apart from the child at issue in the divorce case.
As you can see, uncontested divorce cases can present a challenge when child support is involved although child-support calculation itself should be very simple. The above applies to W-2 employed as well as self-employed spouses.
And since we brought it up, let’s talk about some additional challenges in uncontested divorce cases when dealing with one or more self-employed spouses.
Uncontested divorce in California when dealing with the self-employed spouse
When one or both spouses are self-employed, the special challenge is arriving at the correct income number for guideline child support purposes. The spouses have several choices.
Bad Choice one – making dangerous assumptions
One, they can simply take the self-employed spouse’s word for his or her income and calculate child support based on that. This is dangerous because if the self-employed spouse is providing inaccurate information on his or her income and expense declaration and if supporting documents are not provided and analyzed, the supported spouse may be taking less in child support than what he or she is entitled.
At the same time, the self-employed spouse may be overestimating his or her income and not taking into consideration business expenses or using the proper time frame for calculation of income. Sometimes, at the risk of just getting the case concluded, self-employed spouses will pay too much with the assumption that they will “have to work harder.” Support based on projections can be very risky. Support should be based on what is happening and assuming you will do more in the future to justify paying more now may be a recipe for disaster if it doesn’t work out that way, especially due to circumstances (economy, loss of clients, etc.) beyond your control.
This is not a recommended option.
Better Choice two – demanding to see documents and reviewing them
The second option is to ask for and receive supporting documents including but not limited to business profit and loss statements, and evaluation of the business expenses and a review of the general ledgers to determine the self-employed spouse’s income for child support purposes.
If the business is very small, family owned and operated by both spouses, this may not be that complicated. Both spouses, especially with a very small business, should know approximately what the business makes and what the take-home in personal, gross taxable income after payment of business expenses is.
However, the more complex the structure of the business, the more there will be a need for an expert review of the financial documents.
Best Choice three – bringing in a forensic accountant to help
The third option is to have a California forensic accountant experienced in family law review and determine what the self employed spouse’s income may be. Just because a forensic accountant is hired does not mean that the case has to become contested. Two spouses who are willing to be honest and provide full disclosure should not hesitate in retaining the necessary professionals to conduct an evaluation.
Forensic accountants can provide insight that can avoid a significant amount of litigation and allow the parties to come together. That doesn’t mean the number the forensic accountant provides is the number of the parents have to agree upon. Ultimately, the final decision is that of the parents but input from a forensic accountant as well as an experienced divorce lawyer can help ensure that the child support number is a fair and accurate one.
Spousal support and the uncontested divorce in California
Alimony in California is more complex than child support. There is reliance on income but alimony also takes into consideration the Family Code 4320 factors. We discuss those factors in our informative page about California alimony laws and procedures.
How many spouses in an uncontested divorce want to do a full evaluation of Family Code section 4320? I doubt it would be very many. So how do spouses figure out what spousal support should be?
The answer is simple. They get a good family law attorney. It is the most efficient way to get this issue done. Here is how we handle it:
- We will look at each parent’s income
- If we need a forensic CPA, we will bring one in
- We conduct an evaluation of the Family Code 4320 factors
- We will then give you a range of what a fair spousal support number should be and allow you and your spouse to talk to figure out what is and is not affordable and is consistent with both need and ability to pay.
Whether you are the income earner or homemaker, a stay at home mom going through a divorce or a dad, taking shortcuts and trying to figure these things out on your own may not only cause an underpayment or overpayment of alimony, but may make it difficult to make modifications later on. Don’t assume that a Court will allow either of you to go back and second guess the numbers. While the Court has the power to reduce spousal support or increase it on a prospective basis, that requires a showing of a material change of circumstances.
In addition, trying to set aside a spousal support agreement is difficult. There are specific statutory factors involved that are beyond the scope of this article.
Dividing community and separate property in an uncontested divorce in California
The success of dividing California community property in an uncontested divorce depends in large part on the truthfulness and accuracy of the disclosures by each spouse. If the husband and wife live a middle-class lifestyle and have a home, cars, bank accounts and possibly even a 401(k) and retirements to divide, the case becomes simpler because all of these properties and financial accounts can be verified through relatively straightforward sources. Let’s go through these and discuss how to divide them in an uncontested divorce:
How do you figure out what to do with the family residence as part of the settlement?
If the family residence was purchased during the marriage with community funds, there has not been any separate property contribution toward it and reimbursement claims such Family Code 2640 do not apply, the process of dividing the family residence may be as simple as obtaining an appraisal of it, determining the equity and splitting it in a manner that is best for both spouses.
A buyout can be through the payment of cash or through an offset with other property. No matter how it is accomplished, the division should equalize all of the community property so that neither spouse obtains an unfair advantage.
If a buyout does not make sense because neither spouse can afford to buy the other one out, the property will likely have to be sold. If it is sold, it is best to hire an experienced real estate broker to effectuate the sale, and one who will communicate with both spouses so that there is equal management and control of the sale process.
In situations where neither a buyout or a sale make sense because the property does not have any equity and may be severely upside down, the spouses have several options available to them including one of the spouses taking over ownership and title as well as the mortgage payments or the property going through a short sale process. These are not the only two options but they are the two most common ones.
No matter how the house is divided, it is important that the settlement agreement between the spouses which will then become a judgment an order of the court lay out the rights and responsibilities of both spouses and exactly how the division will take place.
Special care must be taken when a buyout occurs or one spouse takes over responsibility of the mortgage payments so that the other spouse is removed as an obligor from the loan. This would typically take place through a refinance or a modification and the spouses will have to discuss how long one spouse will have to accomplish this before the house is listed for sale. The written agreement should be clear in this regard.
These issues can get complicated and the advice of a family law attorney is highly recommended.
How can you settle division of the cars in your uncontested divorce?
Cars are fairly simple divide and that’s if the husband and wife each have their own vehicle, each can keep the vehicle they have and if an equalization payment needs to be made that offsets one vehicle’s equity which is greater than the other. The equalization payment can be made through various means including cash or offset of property. For the valuation, you have many choices – a formal vehicle appraisal or something as simple as using online tools for car valuation.
But simply agreeing to divide the cars is not enough. The spouses should ensure that the appropriate transition takes place with the registration, car insurance, loan and title.
Are 401(k)s and retirements difficult to settle in an uncontested divorce?
These typically will go through a qualified domestic relations order. It is best that spouses do not try to prepare their own and a referral to an experienced attorney who handles such domestic relations orders is necessary to ensure compliance with State and Federal law as well as a proper division of the community property interest.
What do you do with the bank accounts?
Bank accounts are typically divided as of the date of separation unless postseparation expenditures from those accounts have been made toward community debts or expenses.
No matter what, the spouses should exchange statements for all of the accounts that exist and come to an agreement as to what the balances were. Spouses should take care to determine the community portion of those accounts because it is common for spouses to take their post separation income and place it in joint accounts.
If the account involves large dollar numbers and many expenditures, care should be taken to analyze them. Throwing away thousands or tens of thousands of dollars to which you may be entitled is not smart when a small amount of hard work and analysis could save you that money. Bringing in a CPA to look at the expenditures, whether they are community or separate, and an experienced divorce attorney to help determine what the community portion of the bank account may be to divide can save you time, money and aggravation of making mistakes.
This isn’t just true for determining the community property nature of the accounts and the money in it but also the separate property component.
The most common separate property interest that exists in bank accounts is the result of an inheritance, gifts or other non-community money being placed in the account and which still exists as of the date of separation. The more this money has been commingled with community funds, the more a formal tracing of the separate versus community portion will be necessary.
You keep hearing about mandatory disclosures in a contested and uncontested divorce in California but what are they?
There are no shortcuts when it comes to full and accurate disclosures as mandated by California law. Contested and uncontested makes no difference. It doesn’t matter whether you and your spouse can agree on everything, unless your case qualifies for a summary dissolution proceeding.
Each of you must complete and exchange a preliminary declaration of disclosure and, unless you have both waived it in writing, a final declaration of disclosure. In addition, each of you have a duty to keep your disclosures updated until there is a final judgment.
These disclosures include both a schedule of assets and debts with all of the attachments thereto as well as an income and expense declaration with all of the paystub and income information required by the form. Those are not the only forms.
If your spouse wants to skip the disclosure process, you need to seek the advice of a divorce attorney immediately. That may be happening because your spouse is trying to hide assets or income information from you.
If you are thinking about skipping the disclosure process, you are asking for trouble. That is because the court will not accept your stipulated judgment on the issues without full disclosure by each of you and a proof of service under penalty of perjury that you have made the disclosures.
If only one of you is participating in the process and the other is allowing his or her default to be taken, that will not excuse the non-defaulting spouse from completing and exchanging his or her preliminary declaration of disclosure. It is best that uncontested divorce cases not be resolved through default proceedings because negotiations can fall apart and the spouse who is thinking about being defaulted will need to re-participate in the process.
Final thoughts on an uncontested divorce in California
The more simple the assets and income of the spouses, the more simple a divorce should be. But simple doesn’t mean shortcuts. Simple doesn’t mean you don’t conduct your due diligence.
This article cannot possibly go through all of the issues you may be facing, nor can any article that you read on the internet.
You should not rely on anything in this article for your specific factual situation.
It is not intended as legal advice and obviously should not be taken as such.
We hope what you have taken away from this article is that an uncontested divorce is reasonably possible in California and you can save a lot of time and money through the process but that is not a substitute for care that must go into it from the beginning to the end to ensure you and your spouse have reached an agreement consistent with California law.
No matter what, for your case, we strongly suggest each of you have an experienced family law attorney representing you, including through the entire uncontested process.
If you have any questions about your divorce and you believe you have a uncontested or contested case with which you need help, please do not hesitate to contact our respected and trusted Orange County family law firm. We offer an initial, affordable strategy session for those who need help.