Contested Vs. Uncontested Divorce in California
California is a no-fault divorce state, which means that neither spouse has to prove that there was any misconduct on the part of the other. The only requirement for a no-fault divorce is that the couple state that they cannot get along. This is referred to in the courts as “irreconcilable differences.”
However, just because the divorce is based on irreconcilable differences doesn’t necessarily mean that the divorcing couple disagrees on how to divide the assets. When a couple can agree on how to divide all of their assets, the divorce is considered an “uncontested” divorce. When they disagree on any part of the division of assets, then the divorce is considered a “contested” divorce. However, the level and type of disagreement in a contested divorce can range from minor disagreements in a few areas to disagreement in every area. Each type of divorce presents different considerations and even couples who fully agree on most things might not be suited for an uncontested divorce. Likewise, couples who disagree on everything may still be candidates for an uncontested divorce.
In an uncontested divorce, the couple usually agrees on how to divide their marital property and provide for their children. An amicable and uncontested divorce is generally the simplest, easiest, and most cost effective form of divorce available. However, it’s important to keep in mind that divorce proceedings can be complex legal issues in even the most uncomplicated of marriages. A divorce settlement involves a lot of intricate components including the income of the couple, the source of that income, whether children are involved, the length of the marriage, and whether there is any animosity between the couple. Even if you and your spouse can agree on everything, an uncontested divorce may still not be in your best interest.
Who Is A Good Candidate For An Uncontested Divorce?
- Couples with little to no assets and no children;
- Couples who agree on how to divide their assets, who will have physical custody of the children, who will have legal custody of the children, and how much, if any, child and/or spousal support should be provided.
Who is Not a Good Candidate for an Uncontested Divorce?
- Marriages with physical or emotional abuse;
- Marriages where child abuse is/was present;
- When one spouse is, or is suspected of, hiding income and/or assets;
- When one or both spouses are engaged in attempting to alienate the affections of the children;
In marriages with these types of issues, there is a very real possibility that the offending spouse may try to manipulate the other into an agreement that is more beneficial to them and Iit is not uncommon for the victim spouse to agree to an arrangement just to get out of the situation. While getting out of a bad situation is important, it is also important that you are legally protected when you do so. In these types of cases, it is extremely important that you have a neutral party available to give you sound legal advice and ensure that your interests are fully protected.
A heavily contested divorce is the most difficult type of divorce. The relations between spouses can and do get volatile and disagreements can be compounded, extending the length of time the divorce proceeding lasts. Areas of disagreement can range from full disagreement on everything to minimal disagreement on some things. The more the couple disagrees, the more difficult it can be to come to an agreement about how to distribute the marital property and child rearing duties. In these types of divorces, it is imperative that you have a knowledgeable attorney available to ensure that your divorce settlement is fair and accurately represents your wishes.
Do I Need To Hire An Attorney If My Divorce Is Uncontested?
Not necessarily. However, a divorce, under even the best of circumstances, can be difficult and complicated. Spouses who agree on most things may find a few issues that are sticking points or may find that as the process continues, the lines of communication begin to shut down. In addition, there may be areas in your divorce that need to be addressed that neither you nor your spouse had considered. Hiring an attorney can help you resolve issues that you are having a difficult time agreeing on and also bring your attention to areas about the division of assets and child and spousal support that you may not be aware of.
What if I Can’t Afford to Hire an Attorney?
If you can’t afford to hire an attorney, you can proceed pro se. A pro se divorce is a divorce that is initiated without the aid and advice of an attorney. This method is best suited for couples who have reached an agreement regarding all of the terms of their divorce. However, proceeding pro se is not recommended for couples who can’t come to an agreement as to how to divide their assets.
Additionally, proceeding pro se is not recommended for people who have experienced domestic violence or psychological harassment during their marriage. There is the very real possibility that the unequal dynamics of the marriage will reemerge in the divorce process, which could put one partner at a disadvantage in the divorce settlement. If you have suffered abuse during your relationship, it is in your best interest to seek legal advice from a qualified individual.
If you are short on funds, but need legal counsel, many attorneys offer limited scope representation. Limited scope representation allows you to hire an attorney to help you with just the areas where you need assistance rather than the entire divorce proceeding.
Areas To Consider Before Deciding Which Type of Divorce is Right For you
Some of the major issues you and your spouse need to consider prior to initiating the divorce proceedings are:
- Child Custody
- Child Support
- Division of Assets
- Division of debts
California law favors joint physical and legal custody of children. (Physical custody concerns where the child will live while legal custody concerns who will make basic legal decisions for the child regarding the child’s healthcare, schooling, and other day to day activities.) How you and your spouse decide to divide your children’s time and expenses is generally up to you, the division does not have to be 50/50. However, the arrangement should be made in such a way that it preserves the child’s relationship both of his or her parents.
Some things to keep in mind when determining custody arrangements:
- The best method and arrangement to maintain the child’s relationship with each parent;
- Each parent’s work schedule;
- How to divide holiday schedules, birthdays and school vacations;
- The physical and mental needs of the child;
California courts determine how much child support needs to be paid according to specific guidelines. As a general rule, California bases child support payments on:
- Amount of time spent with the child
- The amount of money the parents earn
- The number of children,
- The tax filing status of each parent,
- Health insurance expenses,
- Daycare and uninsured health-care costs.
- Any special needs of the children.
The guidelines present the minimum amount of basic care that parents must pay. However, parents may choose to pay an amount higher than that suggested by the court.
If you are interested in the finding out how much child support is recommended in your case, you can use the California Guideline Child Support Calculator located at: http://www.childsup.ca.gov/resources/calculatechildsupport/tabid/114/default.aspx.
Division of Assets
California is a community property state. In a community property state, all assets that a couple earns during the marriage, that are not considered separate property, are to be divided equally.
Assets you should consider are:
- Any real estate you and your spouse own together;
- Any real estate that was purchased in one spouse’s name using money from the marriage (this includes using any money earned through work that was done during the marriage);
- Any income from an employer, including any benefits the employer offers (401k’s, pensions, other perks that are part of an incentive package);
- Income from self-employment;
- Any stocks, bonds or other investments;
- Any personal property, such as cars, jewelry, art objects;
- Any retirement accounts or investment accounts;
- Money earned from gambling, the lottery or other similar activities.
What exactly constitutes marital property and what constitutes separate property can be extremely difficult to determine. In many cases, property that was held by one spouse only may still be community property depending on how and when it was purchased. This is true even for property you are unaware of. If you and your spouse have a lot of assets, then it is in your best interest to seek legal advice prior to entering into any divorce agreements.
Division of Debts
Just like assets, all debts incurred during the marriage are considered community property. This means that both parties are responsible for repaying the debt. This includes mortgages, credit cards, student loans, car loans, etc. Even debt that your spouse incurred without your knowledge may be considered community property and you may be equally liable.