deciding whether litigation is necessary
Divorce can be one of the most stressful and difficult experiences of your life. When you and your spouse constantly argue and can’t seem to agree on anything, it’s natural to assume your divorce proceedings will be extraordinarily challenging. Unfortunately, even if you and your spouse have reached a mutual agreement to divorce and believe doing so suits both of your best interests, there is no guarantee that your divorce proceedings will be easy.
At the Law Offices of Lisa R. McCall, our team wants to provide you with the information you need to make informed decisions about your divorce case and legal representation. It is vital to understand that before undertaking divorce proceedings is the difference between a contested divorce and an uncontested divorce.
How This Makes a Difference
Many times, when we first meet potential clients, their first question is, “Do we have to go to court?” The answer is, it depends. Divorces, like marriages, are all different and everyone is handled in a different manner because of the different personalities and goals of the spouses. While there can be an amicable resolution regarding the matters to finalize a divorce in some cases, in other cases litigation is necessary to secure a result that is unable to be reached by agreement of the spouses.
What Is a Contested Divorce?
Generally, every divorce is contested to a degree. A “contested” divorce is simply a divorce case in which the divorcing spouses do not agree on all the terms of their divorce. The goal of divorce proceedings is to smoothly transition a divorce case from a contested state to an uncontested state, allowing the couple to sign off on their divorce in a mutually agreeable manner. However, this is more difficult in some divorce cases than others. If both spouses are agreeable to the idea of negotiation, it typically behooves them to take advantage of alternative dispute resolution to settle their divorce and reach an uncontested state.
Often the contested issues in a divorce case are the amount of spousal support that should be awarded, payment of the other spouse’s attorney’s fees, and child custody issues. In some cases, if a spouse knows that the other spouse will simply not acquiesce on any point, it makes sense to approach the divorce from the beginning knowing that it will likely end in litigation.
Contested divorced differs from uncontested divorce in that it is more time-consuming, typically costs much more, and causes more of an emotional strain on the family. However, it is sometimes needed to address challenging issues, such as where a spouse refuses to provide relevant information to determine financial issues in the case, or where a spouse refuses to orders that will protect the children from abuse or domestic violence.
What Is an Uncontested Divorce?
In the best-case scenario for a divorce, both parties will come to an agreement on all major issues that must be decided. Unless the agreement violates the law or public policy, generally a family court judge will likely sign off and approve of the decisions made between the two spouses and finalize the divorce in accordance with their agreement.
Uncontested divorces take substantially less time and money; however, you should still seek legal representation in order to ensure that your legal rights are protected during this process. In some cases, uncontested divorces become contested divorces quickly. Having legal representation can ensure that your rights to your children and your assets remain protected.
Can an Uncontested Divorce Become Contested?
Divorce is an emotionally challenging situation for anyone who experiences it. It’s not uncommon for divorcing spouses to believe they have an uncontested divorce and agree on the important issues their divorce involves. However, it’s very easy for this uncontested state to devolve once divorce proceedings begin. This is a difficult situation, and when a previously uncontested divorce gives way to conflict during divorce proceedings, both spouses should understand the value of alternative dispute resolution.
Most modern divorce attorneys spur their clients to take advantage of mediation whenever possible. This process not only keeps divorce negotiations private and more firmly within the control of the divorcing couple but also saves both of them significant amounts of time and money. The mediation process allows the divorcing spouses to negotiate in a low-pressure atmosphere and reach a mutually agreeable conclusion to their divorce rather than undergoing a strenuous court battle in which the judge has the final say.
Mediation moves at whatever pace works best for you and your spouse. Some divorcing couples have mediation sessions weekly to cover each contested issue, and ultimately it’s possible to configure whatever schedule suits you, your spouse, and your chosen mediator best. However, it’s vital to remember that you still need legal counsel if you intend to pursue alternative dispute resolution. The mediator will help you and your spouse draft your divorce agreement and keep your negotiations focused. However, they cannot provide either of you with legal counsel or provide any advice to preserve your best interests.
How Long Does an Uncontested Divorce Take?
In an ideal situation in which both divorcing spouses agree completely on every issue, their divorce involves, the soonest they can complete their divorce in California is six months. California state law imposes a six-month waiting period before any divorce will be granted. This waiting period exists to provide the divorcing couple one last opportunity to reconcile. It’s important to note that this waiting period begins once the divorce papers are formally filed with the court by one spouse and served to the other. It’s common for divorce proceedings in contested divorces to take longer than six months, especially when the divorcing couple insists on litigation. This means that by the time you and your spouse reach an uncontested state in your divorce proceedings, your waiting period may have already expired, or it will be close to expiring.
Unfortunately, there is no way to speed up the divorce process, even if you and your spouse are certain that you do not wish to reconcile. However, if you expect your divorce proceedings to take longer than six months, it is sometimes possible to bifurcate your divorce. This means the court will grant your divorce and declare you and your spouse officially divorced even though some issues remain unresolved. You and your spouse will be able to litigate these matters later, but the two of you can take immediate advantage of your formally divorced status and remarry if either of you wishes to do so.
How to Handle Your Divorce Case as Efficiently as Possible
An Orange County uncontested divorce attorney can analyze your case and help you determine the best approach to completing it as swiftly and efficiently as possible. In most situations, mediation offers the best results. During mediation, you and your spouse can cover many of the issues that most often generate contested divorce proceedings, including:
- Spousal support. California upholds strict laws regarding spousal support, also known as alimony. You and your spouse can negotiate alimony privately through mediation as long as your agreement aligns with state law. Your respective attorneys will help you navigate these proceedings to reach a mutually agreeable spousal support arrangement.
- Property division. California enforces a community property law when it comes to property division in divorce. This means that you and your spouse must divide all of your marital assets equally. If you leave property division in the hands of a family court judge, the two of you may need to liquidate certain assets and divide the proceeds. Conversely, mediation may allow the two of you to negotiate your assets more seamlessly in a way that works better for both of you.
- Prenuptial contract enforcement. If you and your spouse had a prenuptial contract in place prior to your divorce, your mediation sessions provide a platform for resolving important issues and ensuring your prenuptial contract remains valid and enforceable.
One major issue you cannot settle through mediation is child custody. If you and your spouse have children, the California family court has a duty to ensure whatever divorce agreement you reach aligns with your children’s best interests. You and your spouse may draft a parenting plan in mediation that outlines each of your expectations and goals for custody and child support. Ultimately, a California family court judge must review and approve your terms.
It is vital to remember that you and your spouse do not need to agree on every issue for mediation to hold value in your divorce. It’s not uncommon for divorcing spouses to mediate some of their divorce issues privately before moving to litigation to settle the rest. Your Orange County uncontested divorce attorney will help you move your contested divorce to an uncontested state as efficiently as possible. This may mean settling what you can in mediation to streamline subsequent litigation as much as possible.
Why Do I Need an Attorney?
Whether you face an uncontested or contested divorce, reliable legal representation is invaluable to anyone starting divorce proceedings in California. Your Orange County uncontested divorce attorney can provide the legal guidance you need to navigate the procedural issues that demand your attention in an uncontested divorce. In the event your divorce case devolves into a contested state, an experienced attorney can help you determine the best approach to overcoming this situation.
Your attorney can help you gather the evidence and documentation you need for both mediation and litigation. In many divorce cases, contested issues arise from misrepresentation or misinterpretation of material facts of the divorce. The right attorney will help you navigate these issues more easily and ultimately help you complete your divorce as painlessly as possible.
Contact an Experienced Orange County Divorce Attorney
Both contested and uncontested divorces can take an emotional and financial toll. Learn how your legal rights can remain protected in either case by contacting an experienced Orange County divorce attorney at the Law Offices of Lisa R. McCall, A Professional Corporation. Contact us at 714.644.8760 or online today to schedule a consultation.
