Whether a California divorce is “contested” or “uncontested,” the ultimate destination remains the same: divorce. Although a contested divorce may sound more intimidating, it’s important to keep in mind that both types of divorces in California are merely different pathways.
What is a Contested Divorce Case in California?
A contested case merely means a divorce matter will be resolved within the court system. In other words, one or both parties have “filed for divorce,” without first reaching an agreement, and now the court system will be involved as both parties head toward either (1) agreement or (2) a divorce trial.
An uncontested divorce is the process by which parties and their attorneys attempt to “amicably” resolve a divorce prior to filing. There will still be negotiations and disagreements, but these will take place with the assistance of a mediator, or via negotiations directly between the parties or their lawyers.
Whether your case should be pursued as contested or uncontested will depend upon various factors, including:
- The personalities of the parties involved, including the lawyers
- The duration of the marriage and whether there are children
- What exactly is at stake in the divorce (custody, property distribution, support, etc)
- Whether both parties are being reasonable or not
- Whether there is a history of domestic violence
- How adversarial the parties are
- Whether or not there is a prenuptial agreement
Although “contested” divorces may often involve greater animosity between the parties, that is not always the case. “Contested” merely means the case has been filed in court prior to the parties’ reaching resolution. Uncontested merely means the case was settled before filing. These are considered “legal terms of art,” or legal terms, not judgments of the willingness of either party to work together.
Sometimes a strong-willed party will seek mediation in hopes of dominating their spouse in negotiations without lawyers present. Here it may be more beneficial for the more reasonable party to insist on a contested divorce. Remember, these terms are not values or judgment calls, but legal terms of art. Your attorney will help you strategize about what type of divorce makes the most sense for you.
Contested versus uncontested divorces may also impact the timing of your divorce.
Timing and Contested Divorce Procedure
Clients always want to know how long their divorce might take. The truth is a divorce only ever lasts for as long as it takes two parties to agree on settlement terms. Absent such agreement, a divorce will last until there is a trial, which may take months or even years for the court to schedule.
A contested divorce generally takes longer than an uncontested divorce because the court will control many elements of scheduling. That said, you can always turn a contested divorce into an uncontested divorce later, by settling and asking that the divorce settlement be finalized.
Because divorces are often complicated, the involvement of the court may lead to additional delays. When you file for divorce, you are no longer in control of the schedule or the process. The court is now in charge, and both parties will be tasked with established requirements and procedures to comply with the Court.
Because the parties and their attorneys can better control the process, the timeline for an uncontested divorce is often faster than that of a contested divorce. The attorney’s fees may be reduced as well because there will be less mandatory court appearances. But this is only true in the aggregate, and every case will have its own unique timeline and costs, whether contested or uncontested.
By now you may be wondering what impact a contested case may have on your case itself.
Impact of Contested Divorce on Custody and Support
Within reason, the parties to a divorce can agree to anything that is legal. The court will not generally review your divorce agreement for fairness or equity, but merely to make sure you “freely and voluntarily” entered into it. If a case goes to trial, however, then the judge must be bound by California’s rules, laws, and procedures.
Accordingly, you have much more control in a California divorce if it’s uncontested. But only in the instance if a contested divorce goes all the way to a trial. At a trial the judge will order custody, child support, alimony, and the like “by the book.” Whereas if you reach settlement terms on your own, you will have more wiggle room to work out a deal that makes sense for you.
Another consideration is whether you have a prenuptial agreement.
Contested Divorces and Prenuptial Agreements
You may believe that because you have a prenuptial agreement that your divorce will be uncontested. And indeed, it may help in that regard as many terms of your divorce agreement will already be resolved. But the choice of contested versus uncontested divorce will remain even when you have a prenuptial (or even a postnuptial) agreement in place. The reasons for that are as follows:
- Parties may still question whether all or a portion of the prenuptial agreement are valid, which is invariably a contested issue if raised.
- Custody and child support cannot legally be addressed in a prenuptial agreement, so a divorce may wind up contested on these specific grounds. The court must look to the “best interests of the children” at the time the divorce is pursued, and thus such matters cannot legally be contracted in advance.
Divorces require a “global settlement.” That means the parties must agree on all material terms of an agreement before their divorce may be finalized. For that reason, many cases with valid prenuptial agreements in place may still end up as contested divorces.
But what if your ex wants a contested divorce, but you do not?
My Spouse Wants a Contested Divorce
Now that you know the differences between a contested and uncontested divorce and are comfortable with considering both types of divorce for your matter.
It can be frustrating if you desire an uncontested divorce, but your ex does not. Unfortunately, in California a case is considered contested once either party files for divorce.
At the outset of the case, you should discuss with your attorney whether to pursue a contested or an uncontested divorce. The parties can often agree in advance on what type of divorce to pursue. Depending on your case, a contested divorce may even be a benefit.
Whether your case is contested or uncontested, our divorce firm is available to strategize and work toward your divorce goals.
Your Orange County Attorneys, Handling Contested and Uncontested Cases
Whether a divorce is contested or uncontested, our firm will marshal our talent, experience, and resources to work toward your unique objectives.
If you’re confronting a divorce case in Orange County or surrounding locales, call (949) 565-4158 or complete an online contact form to schedule a consultation with Burch Shephard Family Law Group. We are a compassionate and specialized law firm with more than one hundred years of combined family law experience.
We look forward to learning more about your important divorce matter.