Planning for a Contested or High Conflict Divorce

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If planning for an amicable divorce is day, then planning for a contested divorce is night. They have almost nothing in common. Yet, most spouses walk into an anticipated contested and high conflict divorce without any preparation.

It is my hope that after you read this article, you will understand the importance of divorce planning, especially in a contested or high conflict divorce. 

What is a contested or high conflict divorce?

If spouses communicate reasonably with each other and take reasonable positions, there will rarely be a situation where they cannot come to agreement.

Now flip that on its head and you have a contested divorce.

Sometimes, both spouses are the problem. Other times, one spouse is the unreasonable one and refuses to engage in good faith negotiations. That spouse also typically takes positions that are inconsistent with the facts and the law.

What types of issues typically become contested or high conflict?

Child custody and visitation is probably the most contested issue, followed closely by spousal support.

Child support may also become contested because it depends in large part on parenting time.

Beyond that, in divorce cases that involve division of property (assets), division of the family business may be a contested issue.

If the spouses own a home, there may be disputes regarding the community property versus separate property characterization of the home. This is especially true if one spouse claims he or she put a down payment on the home or made improvements to the home from his or her separate property funds. These are sometimes called Family Code 2640 claims. 

While the above are the most common contested issues, there are many more

How should a spouse prepare for a contested divorce?

First, none of this applies if both spouses are unreasonable and refuse to communicate in good faith. What we write below only applies to the reasonable spouse.

Our firm does not represent unreasonable people or those who take positions contrary to the facts and the law. While other lawyers are happy to represent such types because most other lawyers really only care about being paid, we cannot relate to that perspective and therefore we cannot write articles intended to help an unreasonable person be unreasonable.

Here are some tips for the reasonable spouse when he or she expects a contested divorce.

 Carefully study parenting plan guidelines

You should carefully study parenting plan guidelines such as those in the Orange County parenting guidelines (which are helpful even if your case is not in Orange County). That will help you understand the types of parenting plans that exist and the court may order.

These parenting guidelines will help you understand different parenting schedules and narrow down the choices to the ones that make the most amount of sense once your child custody case proceeds to court.

Some counties have a list of parenting guidelines. If your county does not have one, you can use the one in Orange County to give you a general idea of the parenting plans, as there is much commonality among parenting plans in California.

 Gather financial information to which you have lawful access

If you have lawful access to tax returns, bank statements, profit and loss statements and other financial documentation, safeguard them and make copies. You do not necessarily have to take the original, although depending on the circumstances that may be necessary.

At a minimum you should maintain a copy for yourself 

If you and your spouse filed joint, personal tax returns, you should have your own copy.

If you and your spouse have joint bank statements, there is no reason why you should not have your own copy of those bank statements or electronic access to it so you can save electronic copies.

If you are not sure whether you have lawful access, hire an experienced divorce attorney and he or she should be able to tell you.

 Safeguard electronic data

Similar to financial records on paper, emails, text messages, information on phones, tablets, laptops, etc. may be important to a contested divorce case.

If you have lawful access to this information, you should safeguard it. The most common safeguarding method is to create a backup of the data. You can hire a professional to do this for you.

You should not delete or alter electronic data. That may get you into trouble in the divorce case.

 Hire an experienced family law litigator

Notice I did not say family law “lawyer.”

There are plenty of family law lawyers or at least lawyers who claim to practice family law.

I use the word litigator (a lawyer who is experienced in litigation) because in a contested and high conflict case, you will need experience inside the courtroom.

I know plenty of divorce attorneys who practiced law for years or decades. I also know many of these attorneys are somewhere between awful to average at putting on a case and handling an evidentiary hearing, especially one that is high conflict or complex.

Do not just hire anybody to represent you. The courtroom litigation experience is critical to proper representation in high conflict divorce. This is especially true in high conflict child custody cases or those that involve significant income and/or assets.

 Know ahead of time the source for payment of attorney's fees

One of the worst things you can do is dive into a contested or high conflict divorce case without first thinking about whether you can afford litigation.

The California Family Code gives the spouse who is the lower earning spouse or has less access to money the ability to seek attorney's fees against his or her spouse.

That is because the California Family Code ensures parity in the ability to afford litigation.

Otherwise, one spouse can simply outspend the other spouse or starve them into submission.

Our laws avoid exactly the scenario. If you are the higher earning spouse, you must be mindful of the potential attorney fee claim and know how to defend against an attorney's fees request. Your planning and preparation must similarly budget the fees you may spend.

 Be prepared to make reasonable settlement offers

Part of planning for divorce includes being prepared to make reasonable settlement offers on those issues where you have all the facts that you need.

This may sound counterintuitive to you.

If the divorce is going to be contested and you are quite sure your spouse will not settle, why does making settlement offers have to be part of the planning process? The answer is to set up your spouse for an attorney fee claim if your spouse refuses reasonable settlement offers or otherwise refuses to engage in reasonable settlement negotiations.

Even if it is unlikely your spouse will be reasonable and cooperative, settlement offers force your spouse to take a position.

Giving your spouse rope to hang himself or herself by taking unreasonable positions will strengthen your case if your case ultimately goes to hearing and the ultimate result is at or similar to the offer you made. This is true for both the lower earning and the higher earning spouse.

Learn more about Family Code 271.

Planning and preparation equates success

Planning for a contested or high conflict divorce starts and ends with calm and informed choices. It takes courage to make those choices. You should not make those choices alone. 

Experienced representation is good but it is not enough. A family law firm highly knowledgable in litigation must accompany that experience. 

Our family law firm is a premier litigation firm. We have offices in Orange County and Los Angeles and serve all of Southern California. We are here to help and a phone call away. 

Ready to learn more? Click on the link below to check out our guides on expectations about divorce including expectations about the family law judge, your lawyer and your spouse's lawyer.

Expectation before divorce guides

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