If you have made the difficult decision to get a divorce, your goal is most likely to settle out of court and move on quickly with your life. Having to litigate your California divorce in a family court is usually very stressful and not always in the best interest of your kids, which is the top priority. Most people understandably want to avoid the courtroom as it means you have to deal with a sensitive legal issue in public. Without a divorce settlement, a family court judge is forced to make crucial decisions about your future.
You will have to attend several court hearings and take time off from work. Of course, you want to avoid the hassle and potential conflicts with your spouse. In most divorces, spouses can agree they would rather have the divorce process go smoothly and without conflict. In California, you are not required to appear in court for a divorce.
In reality, however, many divorces are complicated and highly emotional. Settling all the divorce terms out of court is not possible. The crucial issues are too complex, and reaching a mutual agreement with your spouse is not an option.
Litigating your divorce in court will make the process longer and more expensive. It also means you have much less control over the outcome.
If this describes your situation, you need to start by consulting with a California divorce lawyer to review all the details and legal options.
Why Is Settling a Divorce Out-of-Court Not Always Possible?
While every divorce in California is unique based on your circumstance, the primary terms that must be negotiated with your spouse or settled by a family courtroom are often similar, including;
- Child custody and visitation,
- Child support,
- Spousal support (alimony),
- Dividing community property.
One of the most common reasons couples can't settle out of court deals with child custody arrangements which are clearly at the top of most parents' priority lists. Child custody in California is divided into legal and physical custody. “Legal custody” describes which parent makes important life decisions for your children, including the following:
- Religion,
- Education,
- Health care,
- Extra activities.
One parent will usually handle these decisions, or parents can share them. Often, these critical decisions are why the divorce can't be settled out of court. “Physical custody” describes how you and your spouse will divide your time between your children.
Usually, one parent is the primary custodial parent with who the children live, while the other parent has a visitation schedule. The goal is usually an equal division of parenting time unless there is a valid reason against it, such as drug addiction, mental illness, or a history of domestic violence.
What If There are Child Support Issues?
The child support system in California is designed to ensure that both parents uphold their financial responsibility to their children's support. The amount of child support is based on a state calculation formula taking both parents' earnings and the amount of time they are responsible for into consideration.
Often, based on this formula, even when the parenting time is divided equally, the parent who makes the most income will usually be ordered to pay the other parent's child support.
The goal of all family law courts is to serve the children's best interests. In some divorces, parents who are ordered to pay child support strongly disagree with the terms and are determined to fight it out in court. In some cases, parents become unreasonable or have unrealistic expectations.
What About Alimony Issues?
Spousal support, known as alimony, is not automatic in divorce. Generally, if one spouse shows they will experience a financial hardship due to the divorce, spousal support will be ordered by the family court judge. The primary issues surrounding alimony in a divorce are the amount and duration.
The court will usually consider many different factors when making decisions on spousal support. Typically, alimony is primarily designed to help the ex-spouse who experiences financial issues and needs time to become self-supporting by getting further education or job training.
In some divorces, alimony issues can't be resolved through a mutual agreement between spouses and settled in a family court.
Dividing Your Marital Property
The assets you and your spouse acquired during your marriage are usually considered community property. This means it will be divided fairly equally between divorcing spouses in California.
The assets you brought into the marriage and were kept separate will usually remain separate property. However, the dividing line between community and separate property often becomes complex and hotly debated by divorcing couples.
In other words, reaching a mutual agreement with your spouse on the division of property is not possible without the intervention of a family court. The division of community property, such as the marital home, is frequently one of the most contentious divorce issues.
Business and Property Ownership
In some divorce cases, certain unique factors make the divorce more complicated and litigation in court necessary. In other words, you can't reach a mutual agreement with your spouse without the court's intervention. These include:
- Business ownership,
- Multiple property ownership,
- High-asset divorce.
Suppose your divorce involves one of these issues. In that case, you will most likely have to use an alternative dispute resolution (ADR) option, such as mediation, to assist you in getting through the complex financial issues.
What If My Spouse is Acting in Bad Faith?
It's not uncommon for a divorcing spouse to be filled with anger and to seek revenge by acting in bad faith in their decisions. A once-loving relationship has now turned into an epic battle on every single detail of the divorce.
If your spouse's goal is to make your life miserable and make the divorce as difficult as possible, then litigation in a California divorce court might be the only option. There are almost countless examples of a spouse “acting in bad faith” in a divorce, but some of the most common include the following:
- Intentionally placing the children in the middle of all debates;
- Deliberately spending all the money in joint accounts;
- Hiding assets or transferring them to family members;
- Obstructing the court process with frivolous motions;
- Failing to provide required financial documentation;
- Purposely stalling the divorce proceedings by false statements;
- Refusing to cooperate or negotiate on routine divorce issues;
- Constantly changing lawyers to drag out the process longer;
In other words, acting in bad faith is deliberate conduct to make the divorce proceedings as painful as possible, and the primary motivation is often revenge.
Suppose your divorcing spouse acts in bad faith with no hope of reasonable negotiation. In that case, the best option is probably moving the divorce through the court process, but this rarely works out better than mutual agreements.
Get Guidance from a California Divorce Lawyer
If you have decided to divorce, then you need to protect your legal rights moving forward, especially on crucial parental and financial matters. Negotiation and mutual agreements with your spouse on divorce terms are generally preferred but not always realistic.
If you cannot negotiate out-of-court divorce terms, you need to review all the details and legal options with an experienced family law attorney in California.
Furman & Zavatsky are Los Angeles divorce and family law attorneys who can assist you in reaching a favorable resolution. We need first to review all the details. We offer free case consultation by calling 818-528-3471, or you can fill out our contact form.