What is a Contested Divorce in California?
Learn the meaning, procedure and cost of a contested divorce in California
Contested Divorce in California
What is a contested divorce in California? What is its procedure? How long does a contested divorce in California take?
These are all great questions so let's get started and go through each and more.
Contested divorce in California - what does it mean?
A contested divorce in California means the husband and wife do not agree on resolution of some or all issues. For example, if the husband and wife have children from the marriage and cannot agree on child custody and parenting time, they have a contested California divorce on child custody issues. If they cannot agree on whether an asset is community or separate property , they have a contested issue regarding that asset.
Why would a divorce in California ever be contested?
A California divorce becomes contested for three reasons. First, there is a factual disagreement. Second, there is a legal disagreement. Third, one or both spouses are unreasonable and refuse to settle the issues. The latter issue brings Family Code 271 and its attorney fee sanctions provision into focus. Sometimes, it is a combination of the three.
California contested divorce procedure
Filing for a contested divorce in California
Filing for a contested divorce in California is the same procedure as filing for any other standard divorce. The spouse who starts the divorce files a petition for dissolution of marriage. The filing spouse then serves the other spouse through the proper procedure. The other spouse then files a response to the petition. From that point, either spouse may file request for order with the court, conduct discovery and bring the case to a hearing or hearings until it concludes.
Check out our guide on the California Divorce Process to learn more about the divorce process from A to Z.
What is the discovery process in a contested divorce in California?
Discovery is the formal request for information from the other spouse. Discovery includes form interrogatories, special interrogatories, request for production of documents, request for admissions, oral depositions and more.
Family Law Form Interrogatories are pre-prepared questions. The California Judicial Council created such forms. Special interrogatories are specially drafted and customized questions. Request for production of documents is exactly what it sounds like - a request for the other spouse to produce certain documents. Request for admissions are either a request for the other spouse to admit certain facts as true or a request for the other spouse to admit to the genuineness of certain documents. An oral deposition is a live question and answer sessions under oath, typically in an attorney's conference room and with a court reporter present.
What is the disclosure process in a contested divorce in California?
Contested and uncontested divorces have the same preliminary and final disclosure process, with one potential difference. Sometimes, in an uncontested divorce, the spouses may decide to waive the final declaration of disclosure. But in a contested divorce where property issues go to a trial, both spouses typically complete final declarations of disclosure.
Preliminary and final declarations of disclosure are an exchange of information. The information includes a schedule of assets and debts, a declaration of income and expenses, and much more. Mishandled disclosures may lead to a host of problems both during the divorce and potentially even after final judgment.
How long does it take to get a court date for a contested divorce?
There are three types of requests for court dates. There is the emergency request, the nonemergency request and ultimately a trial request. The procedures vary slightly from California county to county.
Emergency requests typically see a court date within 48 hours. Most emergency requests are denied because they are not true emergencies. A judge's calendar or the court's calendaring system may set a non-emergency request for order weeks or months away.
A request for a trial date also varies from county to county. For example, Orange County usually requires one of the attorneys to file an "at issue memorandum" which then sets a trial setting conference. At the trial setting conference, the family law judge may set a trial date.
How long does a contested divorce in California take?
A contested divorce can take as little or as long as the spouses allow. For example, if the issues are simple, even though contested, the spouses may wrap up the discovery process quickly and ask the court for a trial date. The challenge is the court's calendar. Even under the best of circumstances when both spouses want to push the case to trial, the court's availability may simply not allow it. Some spouses, especially on complex cases, opt for a trial in front of a private judge (a judge for hire) because the process may be faster and potentially even less expensive, even though the spouses pay the judge for his or her time.
Cost of contested divorce in California
Unless your lawyer is handling your contested divorce on a flat fee, there is pretty much no way to predict what a contested divorce in California may cost. Of course, some of it depends on the attorney's hourly rate. Much of it depends on how contested the divorce gets. If one or both spouses continue to take unreasonable positions, the contested divorce cost may be significantly higher than if the spouses resolve most issues but have reasonable disagreements on some issues.
The attorney may also impact the contested divorce's cost. Reasonable lawyers who are knowledgeable and experienced usually find a way to mitigate costs.
To learn more about the cost of the divorce, check out our article called how much does a divorce cost?
How are contested divorce hearings handled in California?
Contested divorce hearings, like other civil hearings, should be handled the same. The California Evidence Code controls. The rules of procedure including but not limited to those of the California Family Code and the Code of Civil Procedure should control. The spouses provide testimony. Witnesses provide testimony, including potentially expert witnesses if one or both spouses hired them. The spouses, through their lawyers, submit exhibits for the court's consideration. Whether the exhibits become admitted into evidence depends on whether the spouses laid the proper foundation and properly authenticated the exhibits. There are opening statements and closing arguments.
While this is the way it is supposed to work, it does not always work this way, especially on hearings for temporary orders. Trials generally do although we have seen some judges take liberties with the evidence rules and the Rules of Civil Procedure. There are style differences from county to county and judge to judge in California.
Have questions about your specific contested California divorce?
We hope you enjoyed this article on contested divorces in California. Do you want an affordable strategy session to talk about your contested divorce in California? Contact us. We will discuss your specific facts and provide you with legal advice.
This article is not legal advice. Do not construe this article as legal advice. Legal advice only comes from a one-on-one discussion with an attorney about your specific situation.