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Contested Divorce

When you file for a divorce, you are filing to terminate a legally acknowledged relationship or partnership. Divorce cases may end in a variety of ways, some may experience a smooth divorce procedure while others may experience more turbulence along the way. The factors that come into play when a divorce is filed are numerous including the division of property and debts, child custody rights, alimony claims, and child support claims.

Contested divorces are never fun. It means either party does not agree with the divorce agreement. When a divorce is contested it could lead to a courtroom trial which will require the attention of a specialized family lawyer that can act as a mediator. The courts will advise families to take care of divorce agreements outside of courtrooms to the best of their abilities. However, if either party is unwilling to cooperate outside of a courtroom, the next best option is to bring the case into a courtroom and have the law handle the situation.

If you and your spouse are unable to find common ground and you are seeking a courtroom trial, please contact the San Diego Divorce Attorney at 858-529-5150. Upon evaluating your case, we can provide representation in a courtroom to ensure that your side represents the facts you need in order to settle your case. If we can’t help you reach an agreement with your spouse outside of a courtroom, we will make sure a fair agreement is reached in a courtroom.

Fault Divorce vs No-Fault Divorce

Fault-divorce is when either party in a marriage or state acknowledged partnership decides to terminate their relationship and files claims against their spouse. Claims can be filed against a spouse for:

  • Physically or emotionally abusing you or any member of your family
  • ‘Cheating’ or committing acts of adultery
  • Inability to have sexual intimacy or sexual intercourse
  • Lengthy prison sentences

There are some benefits that come with filing a fault-based divorce, one is that it includes the ability to have the matrimony or partnership terminated at once. In no-fault divorce cases, one may face a waiting period of up to one year depending on the state court. Fault-based divorce involves court trials where alimony, child support, property and debts among other claims are filed against the party deemed at fault for the divorce. If you are in an unhealthy or abusive relationship a fault-based divorce might be a quick remedy for your situation. However, if you and your spouse agree on the division of assets and child custody, there may be no reason to file a fault-based claim.

No-Fault Divorce

In no-fault divorce cases, the person filing for divorce will not need to prove a reason for why they wish to terminate their marital status. Either party has the ability to separate from one another without the consent of the other and without the need to go through a fault-based process. The no-fault divorce system was implemented to protect the rights of either party to terminate a relationship especially for women who were often victims of unhealthy relationships with no legal outlets. If a no-fault divorce is uncontested, it is usually because the couple was capable of finding a solution to the claims (if any) outside of a courtroom. Most individuals file a no-fault divorce case and use every means to keep their family affairs away from a court trial.

No-fault divorce cases allow either party to terminate their marital or partnership relationship without seeking the consent of the other party. Since 2010, all fifty states have adopted no-fault divorce laws that allow individuals to terminate their relationship for irreconcilable differences. The procedure tends to be quicker than a fault-based divorce, however, the separation process is delayed if either party disagrees with the division of goods and child custody. In cases where either party is unable to come to an agreement, they may choose to have a court decide the best way to split the assets and/or establish a child custody order. In such matters, the divorce case is contested and will require the aid of attorneys who are capable of representing claims in front of a judge.

Contested divorce vs Uncontested Divorce

There are times when a divorce case is contested or times when either party chooses to make the separation process as difficult as they can for personal reasons. Whatever the case may be, when either party contests a divorce, the process will usually require the attention of an attorney that is capable of representing your claims. Due to the entangling events that arise after asset and property disputes the divorce process will require court hearings where both parties will attempt to resolve their issues in front of a judge. The divorce case can be further complicated when there are children involved and the couple cannot come to agreements on child custody and visitation. If you wish to contest a divorce claim, whatever the reason may be, you will want the advice of a legal expert that is capable of assessing your situation and providing the right type guidance during the filing procedure and court hearings.

Steps to Contesting a Divorce

While you cannot object to a divorce, you may contest the agreements or claims regarding the division of assets, properties, and debts, including any issue regarding child custody and visitation rights. The following will described the recommended steps for successfully contesting a divorce claim.

  1. Review your case with a local state attorney: First and foremost you should seek the help of a qualified family law expert that has the capacity to understand the right type of remedy for your situation. For this reason, we encourage you to visit different attorneys so that you can have a better understanding of your case, but above all, you will be capable of seeing which type of attorney is right for you. Every attorney has their specific study of law so it critical to know who will be representing your case.

    1. Upon choosing your attorney, your attorney will usually conduct an interview with you so that you can explain all the factors that are involved in your case. During this time, your attorney will have a better depiction of your account which will allow him or her to have a better understanding of how to proceed with your case.

    2. Be prepared to provide the attorney with as much information that pertains to your marital affairs. You will want to disclose your marital assets and the number of children involved including other information that may involve debts and/or earnings.
  1. Your divorce petition must be presented to your spouse: Once your attorney has filed your case, the spouse will have to be notified in order to continue with a contested divorce case. Your attorney can attempt to present the divorce petition to your spouse through the aid of law enforcement agencies, by mail, or delivered personally. In cases where the spouse cannot be found, there are other methods used to present the petition including newspaper publications and other media resources. Presenting the case to a person that does not want to be reached may prove to be more complicated than it seems. If for whatever reason the individual you seek is hiding from you and/or intentionally ignoring your calls, you may want to seek advice from your attorney on how to engage with the situation. However, in any case, it is your responsibility to ensure that your spouse receives notice of the divorce petition.

  2. Wait for a response from your spouse: Upon receiving your divorce petition, your spouse will have the option to answer or ignore the request. It is usually in the best interest of both parties to participate when a divorce petition has been filed. Failure to respond to a divorce petition can result in a default judgment where the court will make decisions on the marriage in the absence of either party. However, if your spouse responds to your request the process will move on to the exchange of documents and information process.

  3. Exchange of documents and information also known as ‘discovery’: Once you have reached this step in the divorce procedure it means that there is some form of cooperation from the participating parties. During the discovery process, both parties will exchange information pertaining to the divorce including a full disclosure of 1) properties, 2) income, 3) debt and other information pertaining to their financial and private matters. Having a clear understanding of all the factors that contribute to your case will allow the court and attorneys a better understanding of how to split up the property, assets, and debts of the marriage. Nevertheless, there are times when individuals intentionally miss certain deadlines to either hide certain information or to gain more time on the divorce procedure. You need an attorney who will be capable of contacting the participating parties to ensure that deadlines and requirements are met.

  4. Settling your divorce case: In many cases, a judge will provide an order to have your divorce settled outside of a courtroom through mediation. The court believes that family matters should be handled outside of a courtroom to ensure that the parties involved come to an agreement that works for both. In mediations, both members will be able to divide their marital assets and debts with the help of qualified mediators and attorneys. If you successfully complete a mediation it means you have reached an agreement with your spouse on issues pertaining to alimony, child support, and division of property, assets, and debt. A judge is not always the right person to help you find a ‘fair’ verdict on your divorce petition, we encourage you to seek mediation whenever possible.

  5. Bringing your case into a courtroom trial: If you have been unable to reach an agreement with your spouse either because of their unwillingness to cooperate or because an agreement was not possible, you may proceed with a courtroom trial. In a courtroom trial, you will be asked to present your case and claims over child custody or the division of assets. During the trial, you will be capable of having the assistance of your attorney to help you present your claims. After cross-examinations and all the information has been presented in the courtroom, depending on the issues of your claim, a court judge will write a court order. The court order will contain the judge's verdict on the division of property, assets, and debts and if applicable, will provide a decision on child custody or visitation.

  6. If the verdict is considered unfair by either party, they may pursue a ‘post-trial motion’: If you believe the verdict is unfair and that there needs to be a revisit to certain accounts, you will need to submit a post-trial motion. If you can prove that the accounts need to be revisited, you will have the opportunity to reopen the discussion on your divorce verdict. In proving that the verdict is unfair you will need to provide enough supporting evidence. Usually, the petitioner will have no more than thirty days to file this motion. The other party will also have the same amount of time to respond to the motion.

  7. Appealing in a courtroom: In the event that a post-trial is denied, the petitioner may appeal the denial within thirty days of having the post-trial motion denied. The petitioning party will need to supply the court with a description of the case. On the receiving end, the other party will also have thirty days to respond to the appeal. The court will usually grant both parties the ability to discuss their issues in a courtroom. The court can rule the case to be re-evaluated in further trial or it can have the case closed permanently.

Filing a divorce can become complicated when either party chooses not to participate. When either member chooses not to participate, the only option available to carry on with a divorce agreement is to enter a courtroom. If you need legal representation, please contact the San Diego Divorce Attorney at 858-529-5150.

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