FAQ: Family Law
What is the different between an uncontested divorce and contested divorce?
Since all divorce cases have their own differences, there are alternate options for how a couple may wish to go about ending their marriage. A contested divorce occurs when the couple has more disputes on how to resolve the issue. They may be unable to see eye to eye on how to divide property, if there is a need for spousal support and who should have custody of the children. This can create the need for both of the individuals to have their own legal representation to ensure their interests are looked out for. The case may need to go to court where a judge will make the decision on it. This can also make it beneficial for both sides to have an attorney to argue on their behalf in court and negotiate with their spouse's legal representative. In an uncontested
divorce the two individuals are able to agree on seeking a divorce and many of the main factors. They may use an attorney to help them with figuring out the details and following through with the process.
What are the benefits and disadvantages of both?
There are pros and cons to both sides that will vary depending on the situation. An uncontested divorce can be less expensive and take less time to complete. This can be a substantial benefit in a situation that is already difficult enough. Not all couples are able to go this route and through a contested divorce they can have the opportunity to fight for what they want. In a divorce it can be easy for individuals to be unfair and attempt to give their spouse a less than favorable settlement. A contested divorce allows individuals the chance to give their input and not back down as easily in matters of child custody and other critical issues. It can also give them the option of either pursuing to receive or avoid paying spousal support. If the case goes to trial the judge can review it and both sides will be given a chance to have their say. Even if the case does not require the need to go to trial, by working with a legal professional they can be protected by someone who knows what they rightfully deserve.
How is property divided in California?
California functions as a community property state. This means that the property that a couple has will be divvied up as either separate property or community property. In general, separate property will include anything that was acquired by one of the parties prior to entering into the marriage or was obtained during the marriage as either a gift or inheritance. Community property will involve anything else that was gained by either of the two individuals or jointly. This will then be divided amongst them in an equal manner, not taking in to account the actual financial contributions that either spouse had. With other factors set aside, the distribution is essentially meant to be an even divide. This is done with the belief that both parties did make contributions, even though they may have been done in different ways. This form of property division can work for or against some individuals and for those that stand to lose more, it is often necessary to try to establish as much separate property as possible to avoid it being included in the community property category.
Who should get a premarital agreement?
This is an agreement that is made between two people that intend to marry, but have yet to officially do so yet. It allows them to establish some guidelines up front that can be useful in the event of a death or that their marriage comes to an end. It is often in regards to financial matters and can help establish some items as remaining as separate property even if they eventually file a divorce. While it can sound harsh to some individuals to decide what to do if a marriage ends before it has even begun, it is a reality that many people face and a number of the devastating effects could have been avoided through initial preparation. These agreements are not only for the extremely wealthy, and in fact there are people from all walks of life that stand to lose something if their marriage is ended. It also gives many couples the opportunity to speak freely and communicate openly before they enter into a relationship that is likely to have its difficult moments.
I lost my job. Do I still have to pay child support?
Losing your job or other factors may make it challenging for you to make child support payments. This is an issue that is dealt with by many, or they may find reason that they should not be subject to spousal support as well. While there may be substantial reason to do so, and even if your former spouse agrees, the original terms of the court still stand and in order for you to discontinue or reduce payments, the change should be done legally. This may mean a modification is sought, either with or without the support of the other parent. The court can review the case and make a determination on what they think is a fair resolution.
Modification can also be sought in matters of visitation or child custody rulings, and either of the two individuals is able to initiate them. The court will want to see that there has been a change in the circumstances that is reason enough for an adjustment to be made.