No one who is about to go through a divorce wants to be subjected to the type of spiteful and hostile divorces that are routinely portrayed in movies and television, but many feel that an adversarial contested divorce is inevitable to the process.
A “contested divorce” means that the parties can’t agree on all the issues, such as property division, custody and visitation with children, the amount of spousal support (alimony), how to divide debts, or payment of attorney’s fees.
In these cases, a family court judge will ultimately have to decide these questions after divorce litigation. The reality is that a contested divorce is usually not inevitable, and although a divorce will always be difficult, for many divorcing couples in San Diego much of the emotional and monetary cost of a contested divorce can be avoided.
An alternate path is the amicable divorce (also called an uncontested divorce). Here, both parties are able to negotiate and reach agreement on the terms of the marriage dissolution.
There are different ways to reach this settlement, such as through negotiations, collaborative divorce, and mediation. Divorce litigation can drive divorcing spouses to treat one another as enemies, but by reaching settlement through these alternative methods, you may be able to avoid a lengthy contested divorce and reduce costs.
Collaborative law and mediation also give you and your spouse the opportunity to exercise more control over how the legal issues in your divorce are resolved. Compare this to a divorce trial where a judge will decide who gets what. This becomes even more important when you consider the long term effects of a dissolution judgment, most of all when children are involved and you’re trying to promote a healthy post divorce relationship with the other parent.
In a collaborative divorce, both you and your spouse will have your own lawyers, and everyone will be involved in discussing the family law issues and possible resolutions. Similarly, the goal of divorce mediation is also to reach a mutual agreement by working together but with the added help of a mediator who will act to facilitate settlement. The mediator won’t be able to advise the parties because he or she has to remain neutral.
Once a settlement is reached, the agreement will be put in writing and be presented to the court for approval.
Typically, the court will grant an uncontested divorce on the terms of your agreement.
No matter if the divorce is contested or amicable, California law requires divorcing spouses to exchange initial and final financial disclosure declarations and other documentation.
These financial disclosures are essential to making sure you know where you stand and whether a settlement will be fair, and must be carefully reviewed. When a settlement is reached, a marital settlement agreement (MSA) has to be prepared. This agreement needs to be comprehensive and carefully thought out, because an MSA will become your divorce judgment if it’s approved. Before signing the marital settlement agreement, community property issues including any waivers or reimbursements; pensions; as well as the characterization (ownership), valuation, and division of assets have to be assessed so you can reach a fair resolution that protects your rights.
Also keep in mind that your proposed agreement of family law issues such as child custody, visitation, and child support must comply with California family law and policy to be accepted by the judge, as is true for other terms of your MSA. Even if agreement can’t be reached on all issues, you can still narrow the scope of the divorce trial by resolving part of the divorce through settlement.
In any case, it’s essential that you understand your legal rights under California’s community property and family laws so you can reach a fair settlement, and that you have an experienced advocate on your side whether in court or during settlement.
Our family law attorneys will help you through the divorce process and seek ways to minimize the financial and emotional impact of divorce. We’ll advise and guide you through negotiations to help ensure that your agreement abides by California law, and prepare a comprehensive marital settlement agreement that will be more likely to be accepted by the judge.
Dissolution raises complicated legal issues and key questions affecting your property and family rights in the future, which is why we’ll keep you well informed and protect your interests, giving you peace of mind as you move forward.
Learn how we can help you by calling our Minella Law Group divorce attorneys at (619) 289-7948.