Ending a marriage isn’t easy — and a divorce can be even more stressful and emotionally draining when it is contested. In California, a divorce may be contested for any number of reasons, including factual and legal disagreements. Typically, contested divorces arise when spouses do not agree on one or more of the important issues that must be decided before a judge will sign the decree.
What is a Contested Divorce?
A divorce can either be uncontested or contested. A divorce is uncontested when spouses can reach an amicable resolution with little or no court involvement. When a divorce is contested, the court is usually involved, and multiple hearings may be required. However, a contested divorce doesn’t necessarily mean that one of the spouses doesn’t want to part ways — in California, a divorce can be granted even if only one of the parties wishes to dissolve the marriage.
A contested divorce simply means that spouses cannot agree on one or more of the issues that must be decided. In a contested divorce, any of the following issues may be in dispute:
- Child custody
- Child support
- Property and asset division
- Distribution of debts
It’s always best to work toward a settlement outside of court, rather than let a judge decide the outcome — but sometimes, litigation is the only option. In the event mediation and negotiation attempts fail, judicial intervention may be required. If settlement discussions reach a standstill, the case may proceed to trial.
What is the Procedure for a Contested Divorce?
A contested divorce begins in the same way as an uncontested divorce — with the pleadings. Specifically, a petition for divorce must be filed with the court and served on the respondent spouse. The spouse who has been served with the divorce papers has 30 days to respond to them by filing an Answer. If they do not respond, a default judgment of divorce may be issued.
After both spouses have appeared in the case, the discovery process begins. This is the phase of litigation in which the spouses exchange details with each other concerning assets, income, custody, and any other information that could influence the outcome of the case. Depending upon what issues are in dispute, the discovery process in a contested divorce can be lengthy.
Although settlement negotiations can continue throughout the divorce process, a judge will encourage the parties to have a serious settlement discussion at the conclusion of the discovery phase. If spouses can agree on some of the issues but disagree on others, a declaration of the issues that have been resolved must be filed with the court. Most California courts require that a form to set a trial date be filed and served if there are any issues that cannot be settled.
A trial may be held if there are complicated issues that cannot be decided between the spouses. However, a trial might not always be necessary. For example, if spouses agree on all issues except child support and the parties’ finances are not complex, a Request for Order may be filed. These types of hearings are shorter and faster than a full trial.
The Divorce Trial
A divorce trial requires a considerable amount of preparation. Before trial, a pretrial conference will be scheduled to ensure both parties are prepared to proceed with a trial. These conferences may also be used to determine whether a case is ready for trial. In most cases, a judge will schedule a “mandatory settlement conference” before hearing the case at trial to ensure the parties have made a genuine attempt to settle the matter.
It’s important to understand that there are specific rules and procedures that must be followed in a divorce trial. Both parties will have the opportunity to present their sides of the case. This can be done through witness testimony, the presentation of various evidence, and oral arguments. Upon conclusion of the trial, a judge will render a ruling based on the law and what they consider to be fair. Once an order has been issued by the court, it is legally binding on both parties.
How Long Does a Contested Divorce Take?
While an uncontested divorce may take as little as a few weeks, a contested divorce can take anywhere from several months to a few years. The length of time it will take for a contested divorce to conclude will depend on the number of issues that must be determined, the complexity of the case, and the contention between the spouses. Critically, the court calendar can also play a major role in how long a case will take.
Other factors that can impact the duration of a case include issues such as hidden assets and cooperation during the discovery process. If forensic accounting investigations are needed or multiple motions must be argued, the divorce process can become even lengthier — and more costly. To save time and money on divorce, it’s important to seriously consider whether an alternative to litigation, such as mediation, collaborative divorce, or arbitration would achieve the desired outcome.
Contact an Experienced Fresno Divorce Attorney
If you’re facing a contested divorce, it’s crucial to have a knowledgeable attorney by your side to inform you regarding your rights and protect your interests. With more than 20 years of experience, the Law Offices of Rick D. Banks offers clients experienced representation and skillful counsel for a wide variety of divorce matters — including contested cases. To schedule a no obligation consultation, call (559) 272-8359.