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difference between contested and uncontested divorce

As if the emotional aspects of a divorce are not enough, divorce typically involves complicated legal processes. You may have heard that uncontested divorces are more efficient. But what does it mean for a divorce to be contested? What is the difference between a contested and an uncontested divorce? When you request an uncontested divorce, you and your spouse come to terms without relying on the court, while a contested divorce may involve court hearings or even a trial.

If you are trying to decide whether a contested or an uncontested divorce will work best for you, our California divorce lawyers at Pakpour Banks, LLP can help. We work to limit how much you have to pay every step of the way. With our help, you may convince your spouse to file for an uncontested divorce or, at least, minimize the contention between you as much as possible.

How Does Divorce Work in California?

Absent a prenuptial agreement, when you divorce, you need to address, as applicable:

  • Property and debt division,
  • Child custody,
  • Child support, and
  • Spousal support. 

Once you have completed the required steps, the court will issue an order dissolving your marriage which, by law, cannot become final any sooner than six months from the day the court gains jurisdiction over both individuals.  The court gains jurisdiction over the person who files for divorce the day he or she files.  The court gains jurisdiction over the other person when he or she is served with the appropriate divorce papers.  If you have a history of domestic violence, the law includes several provisions to protect an abused spouse.

Property and Debt Division 

When spouses acquire property or debt during a marriage, they typically share it. Upon divorce, each spouse is entitled to an equal share of marital assets, though the spouses can reach an independent agreement allowing unequal division. Debts may, but not must, be divided equally as well.

Child Custody

California courts rely on the best interests of the child to determine child custody, and there is no presumption that joint custody is in the child’s best interests.  There are two categories of custody:  legal and physical.  Legal custody involves making decisions about the child’s health, education and welfare.  If parents have joint legal custody, they can both make these decisions for their children.  If one parent has sole legal custody, that parent alone has the authority to make those decisions. 

Joint physical custody means that both parents provide a home for the child, and the child spends an equal, or near-equal, amount of time with each parent.  Sole physical custody means one parent provides a consistent home for the child, while the other parent visits with the child for significantly less than half of the time.  Parents may also agree to alternative custody arrangements. 

Child Support

Generally, the non-custodial parent must pay child support. California offers a child support calculator to help determine the non-custodial parent’s monthly obligation.

Spousal Support

A court may order one spouse to pay the other spousal support based on several factors. Broadly, those factors consider the length of the marriage, each spouse’s earning capacity, and each spouse’s contributions to the marriage and household.

What Happens in a Contested Divorce?

In a contested divorce, one spouse files for divorce and must serve divorce papers on the other. Depending on what you disagree about, a contested divorce may look different. 

At the most contentious, you may need to present evidence about each issue you disagree about before a judge at a trial. However, you can always settle your case. The court may even order you to attend alternative dispute resolution before you go to trial. 

What Happens in an Uncontested Divorce?

You and your spouse agree on the material issues before you file an uncontested divorce. You typically follow the same process, but, in limited circumstances, you may request summary dissolution. 

Typical Filing

Although you have to wait the legally prescribed six-month waiting period before your divorce becomes final, you may submit a divorce agreement sooner. Unless you omit important information or your agreement is clearly unfair, the court typically transforms your agreement into a court order at the end of the waiting period.

Summary Dissolution

You can file for divorce using a Joint Petition for Summary Dissolution if you: 

  • Have been married less than five years,
  • Have community property worth less than $53,000, 
  • Do not share children, and
  • Are divorcing based on irreconcilable differences

Additionally, neither spouse may:

  • Own real estate,
  • Have lived outside California in the last six months,
  • Request spousal support,
  • Owe more than $7,000 in debt, or
  • Own separate property worth more than $53,000.

The summary dissolution process is a quicker alternative.

Contested Divorce vs. Uncontested Divorce 

Contested DivorceBothUncontested Divorce
One party must serve divorce papers on the otherOne spouse usually files and serves papers on the otherMay be resolved through summary dissolution
Spouses disagree on at least one material issue when they fileRequire a six-month waiting periodSpouses agree on material issues before filing
May have a trialMay involve alternative dispute resolutionNo trial
Spouses may rely on a court to decide issuesRequire resolution on child custody and support, property and debt division, and spousal supportSpouses must agree on material issues
Spouses may agree on some but not all material issuesRequire a court order to make the divorce finalSpouses must agree on every material issue
You may owe more in attorney fees, court costs, and third-party service feesHiring a family lawyer can reduce stress and save significant timeYou will likely owe less and may not need an attorney

Speak with a Family Lawyer

Although not always possible, uncontested divorce typically saves both spouses time, money, and stress. If you need assistance resolving issues and filing for an uncontested divorce, Pakpour Banks, LLP, can help. If you need assistance contesting issues with a combative spouse and filing for a contested divorce, Pakpour Banks, LLP, can help then, too. Contact us today.

Author Photo

Brian enters the family law profession with a refreshing approach to these proceedings: heal families; don’t destroy them. In some cases, this means the family is going to look different than it did before. In other cases, this means a new family is created where there was none before. Either way, individuals should leave family court knowing their voices were heard, and with healthy attitudes about themselves and those they love.

Read More Legal Blogs By Brian Pakpour

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