If you and your spouse are seeking a separation or divorce, you are likely trying to navigate the practical reality of your situation, such as laws, rights, and logistics, while also balancing the emotional and mental toll that often accompanies such a decision.
There are a few ways to seek a divorce in California, and one such method is traditional litigation. This is the most known and most seen type of divorce, often thanks to movies and TV shows, but it is not the only way to obtain a divorce. This article focuses on traditional litigation while briefly touching on other ways to seek a divorce.
At San Diego Family Law Attorney, we specialize in the legal procedures around separation and divorce, including traditional litigation, and we serve clients across the greater San Diego region. We provide the information below as an overview to what traditional litigation includes, but this information is not intended as legal counsel. Only a knowledgeable legal professional with full understanding of your specific situation can provide legal advice.
Divorce in California
The State of California recognizes three ways of ending a marriage or registered domestic partnership:
- A divorce, which is formally known as a dissolution of marriage
- A legal separation
- An annulment
(Note that marriages apply to heterosexual couples as well as same sex couples, while registered domestic partnerships apply only to same sex couples.)
California does not require both spouses/domestic partners to agree to end their marriage. Instead, only one spouse need make the decision and the other spouse, even if he/she is not in agreement, cannot refuse to participate in the separation proceedings. Should one partner opt against participating in the case, the other partner can still obtain a default judgment which approves the divorce.
Legal reasons for divorce
The State of California recognizes two legal grounds for divorce.
- Irreconcilable differences. California is known as a “no fault” state for divorce. This means that the spouse/partner who seeks the divorce is not required to prove that the other spouse/partner actually did something wrong. One spouse can simply seek a divorce for reasons of irreconcilable differences, which is the more common way to file for divorce in the state.
- Incurable insanity. The only other legal reason a spouse/partner may seek a divorce is if the other party is deemed incurably insane. The party seeking divorce must prove such a claim, which typically requires a competent professional, such as a medical or psychiatric doctor, providing testimony that indicates the other party is incurably insane as of the time of filing for divorce and that the party remains incurably insane.
Filing for divorce in California
Filing for divorce in California requires that at least one party must reside in California for a minimum of six months prior to filing. Furthermore, the party must reside in the county where he/she is seeking the divorce for a minimum of three months prior to filing.
Once the spouse/partner has formally filed for divorce, the state mandates a waiting period of six months before finalizing the divorce.
Divorce and separation are huge changes and they can be very complicated. While waiting for the divorce to finalize, the two parties must begin making decisions regarding how they will divide the things that are shared in their lives. Once a couple chooses to separate, there are many ramifications.
If a couple is able to pursue an amicable divorce, they may have little trouble making decisions on who gets what property, whether any type of financial support should be offered, and who will pay off shared debts. Perhaps a couple even has a pre- or post-nuptial agreement that contractually spells out exactly who gets what and who is responsible for what.
Perhaps, instead, the couple is not able to pursue an amicable divorce. This means they may have a lot more difficult time making important decisions. Furthermore, if children are involved in the marriage, divorce can become a lot more complicated and even contentious.
It is in situations where couples cannot reach a formal agreement that traditional litigation may become a necessary route.
What is traditional litigation?
Litigation refers to the process of filing or responding to a complaint through public courts in order to resolve a dispute. The complaint’s nature is the basis for settlement negotiations. Litigation is a public process that takes place in a courtroom. It can include civil and criminal suits, but in family law, litigation is primarily a civil action.
Traditional litigation is marked by two parties, each represented by an attorney who presents their side of the case to the judge. The judge then considers the information and makes a decision accordingly.
When it comes to divorce, litigation is one dispute resolution method. As divorce falls under family law, a civil family court hears the case and the judge makes a decision based on the information presented.
Litigation is typically used by when both spouses/partners are unable to reach a consensus on certain decisions related to divorce. Decisions that may require litigation include determining child custody, child support, spousal support, and the division of property. While litigation can feel contentious, it could be that the parties could reach a decision together about many topics but are stuck on a few issues and both parties are unable or otherwise unwilling to acquiesce to the other party’s proposed terms.
Common topics in traditional litigation divorce in California
Parties seeking to divorce opt for litigation most often because they are unable to reach decisions on topics that are very contentious. These can include child custody and visitation rights, support for the spouse and/or children, and even division of property.
The following sections describe how California courts consider each topic.
Child custody
Courts are mandated to follow the standard of the child’s best interest when making a decision regarding a child custody situation.
The court can award either party custody of children. Types of custody include:
- Joint legal custody
- Joint physical custody
- Sole custody
The decision to award custody is always based on the best interest of the child. The court considers factors including but not limited to the following: the health, safety, and welfare of the child, the quality and quantity of contact with both parents, the previous existence of abuse or continual use of drugs or alcohol from one or both parents or related family members. The courts can also consider a number of other factors when making this decision.
Child support
California courts calculate child support using a method called the Income Shares Model. If parents cannot agree on child support, the court makes a decision on this formula which calculates criteria including but not limited to: how much money parents earn or are able to earn, how many children the parents have together as well as any support the children may receive from other relationships, actual tax filings, health expenses and health care costs, daycare costs, mandatory contributions such as retirement savings and union dues, and how much time the parents spend with the child(ren).
Spousal support and partner support
Courts in California can order spousal or partner support but are not required to. A support arrangement typically includes one party providing financial assistance to the other party.
When making the determination, the courts consider many criteria including but not limited to: the length of the relationship, each spouse’s needs, including their age and health, the earning capacity of both parties, whether one opted for raising the children in lieu of career pursuit, whether domestic violence occurred, debts and property as well as taxes and how the couple handled money together.
Dividing property
The State of California recognizes community property. This means that the court will divide any shared property 50/50 between the parties. The exclusions to this are:
- If a written agreement exists, such as a pre-nuptial agreement
- If the parties orally agreed to a different stipulation in court
- If a party owns property separately
Other methods of resolving divorce disputes
Litigation is one method of dispute resolution, and it also the most extreme and final. There are other dispute resolution methods, including arbitration, mediation, and collaborative divorce. These may be undertaken in order to avoid traditional litigation.
Mediation
Mediation is often a first step on resolving divorce disputes. Mediation is often conducted by only one person, an impartial mediator. Instead of judging the decision of the case, the mediator seeks to facilitate discussion and help the parties resolve the dispute. Mediation is typically done in private and any agreements must be unanimous.
Because of its structure, it is often the cheapest and least time-consuming option. Even if mediation cannot solve all of the issues in a divorce or family law dispute, it may solve some, leaving larger or more contentious issues. Even this is valuable because the less time you can spend in traditional litigation, the more time and money (and stress) you can save.
Arbitration
Arbitration is similar to mediation but it has a couple key differences, including that the result or decision of the arbitrators is typically binding.
In arbitration, two parties present their sides of this issue or complaint and an unbiased third party makes a decision. The main differences between litigation and arbitration include:
- Use of attorneys. In litigation, attorneys are practically always used to drive the court action, whereas in arbitration attorneys may not be If they are, it is typically in a very limited capacity.
- The decision. In litigation, the judge or courts make the decision, whereas an unbiased third party makes the decision in arbitration, and this party does not have to be experienced in law or legal proceedings. Importantly, a decision in arbitration is typically binding.
Like mediation, arbitration can be used before moving into litigation.
Collaborative divorce
A collaborative divorce is another option to resolve your divorce out of court in California. Both parties (whether spouses or domestic partners) use lawyers to negotiate the agreement, and each party hires their own collaborative lawyer to help navigate the settlement.
Both parties will meet separately with their own lawyers as well as with the other party and his/her lawyer. Both parties and both lawyers also sign an agreement that they will not go to court. In the case of unresolved disputes, you can also involve other professionals such as accountants, psychologists, or child custody specialists to consider other angles while making this decision.
Should both parties be unable to reach an agreement, even with the help of the lawyers, they can take their case to court for litigation. However, the lawyers will likely both withdraw from the case as per the collaborative divorce contract all parties previously signed. At that point, you’ll likely need to hire litigation lawyers to prepare for court.
Outcome of traditional litigation
For many couples who choose to divorce, litigation is the final step. Perhaps they considered other resolution methods, which may be resolved some issues but still left larger, more contentious issues on the table. By the time two parties reach litigation, they may be acrimonious towards each other and the entire process.
Litigation is notoriously expensive and it can be very time consuming. Watching your family life play out in a public court can also take a mental and emotional toll on the parties involved. Typically, litigation is the result of a high-conflict separation, so tensions between parties are already high and stressed.
Litigation can be a complex, expensive, and time consuming – and that’s without considering the severe emotional and mental toll divorce can take on both parties. Importantly, both parties should try to remember that litigation means a court is treating the implications of their divorce as fairly and equally as possible. While either party may not agree with some of the final outcome, they must trust that it is the best outcome for all parties involved, especially if it includes any children.
Pursuing traditional litigation for a divorce in California is not a light decision. Consider your options and speak with legal professionals. At San Diego Family Law Attorney, we are experienced in traditional litigation and we can guide you through the best options. Call us today at 619-610-7425 to get started.
