Navigating the Divorce Process in California: Contested vs. Uncontested – Which Path is Right for You?

Divorce can be one of the most difficult and emotionally charged experiences in life. Understanding the difference between contested and uncontested divorce can help you make the best decision for your future. In California, the process you choose can significantly affect the timeline, costs, and emotional toll on both parties.

Key Takeaways:

Divorce is never easy, but how you navigate it can make all the difference. If you're considering divorce in California, you’ll likely come across the terms "contested" and "uncontested" divorce. While both paths eventually lead to the same legal outcome, the dissolution of a marriage, the way you get there can vary greatly.

The journey through divorce is unique for each individual. Some clients seek a more amicable resolution, while others face serious disagreements that require intervention. In this blog, we’ll break down the differences between contested and uncontested divorce, outlining the pros and cons of each. This way, you can better understand which route might work best for you, your family, and your future.

What is the Difference Between Contested and Uncontested Divorce?

Before diving into the advantages and disadvantages of each option, it’s important to define the two types of divorce.

While the general outline of each divorce type is straightforward, the path you take can have a profound impact on the financial, emotional, and practical aspects of your life.

Pros and Cons of a Contested Divorce

A contested divorce occurs when spouses cannot agree on one or more important issues. This path tends to be more adversarial and drawn out, requiring more time and resources to reach a resolution. Below are some key pros and cons of choosing a contested divorce.

Pros of Contested Divorce:

  1. Ability to fight for your rights: If you feel that your spouse is not being reasonable, or if you have significant disagreements regarding the division of assets or custody, a contested divorce allows you to fight for what you believe you are entitled to. This can be particularly important if you are facing an imbalance of power, such as in cases involving domestic abuse or financial disparity.
  2. Judicial oversight: When spouses cannot reach an agreement, the court steps in. This ensures that a neutral third party — the judge — will make decisions based on California law. If you feel that your spouse is being dishonest or manipulative, a contested divorce offers a way to have the facts weighed and decisions made by a legal authority.
  3. Preserving evidence: In a contested divorce, both parties have the opportunity to discover and present evidence. This might include financial documents, communications, or witness testimony that could sway the case in your favor. If you suspect that your spouse is hiding assets or income, the discovery process can help expose such issues.

Cons of Contested Divorce:

  1. Time-consuming: Contested divorces tend to be much longer than uncontested ones. Between court hearings, discovery processes, negotiations, and potential appeals, it can take months or even years to finalize the divorce. This extended process can prolong the emotional strain and uncertainty for both parties.
  2. Expensive: Contested divorces are often much more costly due to the involvement of attorneys, court fees, expert witnesses, and other expenses. The longer the process drags on, the higher the legal costs, which can quickly deplete savings. In addition, if the divorce involves complicated issues (such as business valuation or child custody), the costs can skyrocket.
  3. Emotional toll: A contested divorce can be emotionally draining for both spouses. The combative nature of the proceedings can lead to increased hostility, stress, and resentment. This is particularly true in cases involving children, as prolonged legal battles may make it harder to co-parent amicably post-divorce.

Pros and Cons of an Uncontested Divorce

In contrast to a contested divorce, an uncontested divorce occurs when both spouses agree on all issues. This path is generally faster, less costly, and less emotionally taxing. But is it always the best option?

Pros of Uncontested Divorce:

  1. Faster resolution: An uncontested divorce can typically be finalized in a matter of months, or even weeks. Since both spouses are in agreement, the case does not require extensive court hearings or lengthy negotiations. This can provide a quicker sense of closure, helping both parties move on with their lives.
  2. Lower costs: Because uncontested divorces require far less time in court and usually fewer attorney hours, they tend to be significantly less expensive. With fewer disputes, there’s no need for protracted discovery or expert witnesses, which helps reduce overall costs.
  3. Less stress and conflict: The collaborative nature of an uncontested divorce can lead to less animosity between spouses. Since both parties are cooperating and trying to reach a fair agreement, the emotional strain is generally less than that of a contested divorce. This is especially beneficial when children are involved, as it sets the stage for better co-parenting in the future.

Cons of Uncontested Divorce:

  1. Requires full agreement: Both spouses must be in agreement on all aspects of the divorce for it to be uncontested. This means that if there is any major disagreement, such as over child custody or division of assets, the divorce cannot proceed uncontested. This can be difficult for couples with significant disputes.
  2. Risk of inequity: In some cases, one spouse may feel pressured into agreeing to terms that aren’t truly in their best interest. While uncontested divorces are often less stressful, they can sometimes lead to one spouse accepting unfavorable terms simply to avoid conflict. This can be particularly problematic in cases involving significant assets or alimony.
  3. Lack of legal safeguards: Without the judicial intervention typically present in a contested divorce, spouses may miss important legal protections or overlook critical details in the settlement. While attorneys can help, there is often less oversight to ensure that both parties’ rights are fully protected.

Making the Right Choice for Your Divorce

When deciding between a contested or uncontested divorce in California, it’s crucial to weigh the pros and cons based on your specific circumstances. Here are a few questions to consider:

At Christian Schank & Associates, we are committed to helping you navigate the complexities of divorce with clarity and confidence. Whether you're seeking an uncontested divorce for its simplicity or a contested one to protect your rights, we’re here to provide guidance, support, and effective legal representation every step of the way.

If you're ready to take the next step in your divorce journey or simply want more information about your options, feel free to contact us today. Our experienced team will work with you to determine the best approach for your situation, ensuring that your rights are protected every step of the way.

8 Things You Need to Know About a California Divorce

Divorce in California is a no-fault process, which means you don’t have to prove any wrongdoing to end your marriage. The state follows community property laws, dividing most marital assets and debts equally between spouses. The divorce process includes a mandatory waiting period, but you can start resolving issues like custody and property division during that time.

Key Takeaways

Divorce is a life-changing decision that can bring up a range of emotions, from relief to anxiety. If you're facing divorce in California, you probably have a lot of questions. What do you need to know about the process? What steps should you take? How can you make sure you're making the right decisions for you and your family?

Whether you're already in the middle of a divorce or just starting to consider it, understanding the basics of how divorce works in California can ease some of that stress. Let’s take a closer look at the 8 key things you need to know to navigate a California divorce.

1. California is a No-Fault Divorce State

In California, divorce is considered a "no-fault" divorce. This means that you don’t have to prove your spouse did something wrong (like adultery or abuse) in order to get a divorce. Instead, you only need to show that the marriage is "irretrievably broken" or that there are "irreconcilable differences."

This can make the process a bit simpler for both parties since no one has to go through the stress of proving fault or assigning blame. However, just because it’s called “no-fault” doesn’t mean it’s free from emotional complications.

2. Community Property Means 50/50 Division

California follows community property laws, which means that most of the property and debts accumulated during the marriage are considered joint property and are divided equally between the spouses during the divorce. This includes things like homes, cars, retirement accounts, and even debts like credit cards or loans.

It's important to note that property acquired before the marriage or after separation typically isn't included in the division. While the 50/50 split sounds straightforward, things can get complicated, especially if assets are hard to value or if one spouse claims an asset is separate property. That’s why it’s crucial to have an experienced attorney who can help protect your interests.

3. Spousal Support: It’s Not Automatic, But It’s Possible

Spousal support (also known as alimony) can be awarded in California, but it’s not a guarantee. The court will consider several factors, including the length of the marriage, the financial needs of both spouses, and each party’s ability to support themselves.

For long-term marriages (over 10 years), courts may award spousal support for an indefinite period, though this support can be modified over time. In short marriages (under 10 years), support is usually temporary, and the goal is for the supported spouse to become self-sufficient.

It’s helpful to know that spousal support is typically based on the standard of living during the marriage and may be affected by things like job prospects, education, or the spouse’s earning ability. If you’re seeking spousal support or worried about having to pay it, working with an attorney can help clarify what you can expect in your specific case.

4. Child Custody Decisions Are Centered on the Children’s Best Interests

When children are involved, the court’s primary concern is always the best interest of the children. California courts encourage shared custody, where both parents have meaningful involvement in their children’s lives. However, if that’s not possible, the court will make a custody decision based on what’s best for the child.

Custody decisions can be complex, as the court takes many factors into consideration, including each parent’s relationship with the child, the child’s age and health, and the child’s emotional ties to each parent. Parents are encouraged to try to work out a custody agreement on their own. However, if that’s not possible, the court will make a final decision.

California uses a detailed formula to calculate child support. This is based on both parents' income, the amount of time the children spend with each parent, and other factors like health care needs and special expenses. In most cases, the higher-earning parent pays child support to the lower-earning parent to help maintain a consistent lifestyle for the child.

5. There’s a Mandatory Waiting Period

Even though the legal process for divorce can take time, California law has a mandatory waiting period. After you file your divorce petition, the court requires a six-month waiting period before your divorce can be finalized. This period is designed to give both spouses time to think things over and try to reconcile, if possible.

However, the six-month waiting period doesn’t mean you’re stuck in limbo for that entire time. You can take steps toward resolving issues like custody, property division, and spousal support while waiting for the divorce to be finalized. Keep in mind, though, that this waiting period applies even if both spouses are in agreement about the divorce.

6. Filing Fees & Costs Can Add Up

There are several costs associated with getting a divorce in California. The most immediate cost is the filing fee, which typically runs around $435. While this is the basic fee to start the process, there may be additional costs for things like serving papers, court hearings, or hiring expert witnesses for things like property valuation.

Legal fees can also add up, especially if the divorce is contested or involves complex issues like child custody or high-value assets. If you and your spouse can agree on major issues, you may be able to minimize legal fees by negotiating outside of court. However, if your divorce involves disputes, it’s wise to budget for higher costs. In either case, you should always consult with an attorney to discuss your options.

7. Mediation Can Be an Effective Alternative

If both spouses are willing to work together, mediation can be a cost-effective and less adversarial alternative to going to court. During mediation, both parties meet with a neutral third party (the mediator), who helps guide the discussion and assists in negotiating a settlement.

Mediation can be particularly useful for resolving issues like child custody and division of property without the need for a lengthy trial. If you're interested in mediation, make sure to work with an attorney who can help you understand the potential benefits and drawbacks of this approach.

8. Domestic Violence Issues May Affect the Divorce Process

If there are allegations of domestic violence, the divorce process can become much more complicated. California courts take domestic violence claims seriously and may issue protective orders, which can impact decisions regarding child custody, visitation, and property division.

If you're experiencing domestic violence or fear for your safety, it’s crucial to inform your attorney right away. Protective orders and the safety of both you and your children will be a top priority in such situations. California law provides resources for individuals in dangerous situations, and an experienced attorney can guide you through these legal protections.

Let Us Guide You Through Your Divorce

Divorce can be one of the most challenging experiences of your life. Whether you’re looking to make decisions about property division, child custody, or spousal support, it’s essential to understand the process and know your rights. Having the right legal guidance can help you navigate this challenging time with confidence.

Christian Schank & Associates offers experienced and compassionate legal representation for families across California. Our team is here to help guide you through the complexities of divorce and ensure that your best interests are protected every step of the way.

If you’re ready to take the next step, contact us today for a free case evaluation. Let’s work together to find the best solution for you and your family.

The Social Determinants of Health (SDOH) and How They Apply in Family Law

The Social Determinants of Health (SDOH) are various factors in our lives that influence the quality of our health. These are examples of elements that can negatively impact our health:

Individuals who belong to a minority group in any of these categories often suffer negative consequences, including shorter lifespans. The SDOH highlight inequities in society that ultimately affect quality of life. In family court, considering the SDOH is essential in cases involving child custody, visitation, child support, and spousal support. For instance, if one parent cannot provide a safe and nurturing environment for their child but has the desire to do so, while the other parent can provide such an environment but lacks the willingness, the solution is not to award custody to the parent who can provide but does not want to. Instead, the child should be placed with the parent who wants to care for them, with the other parent providing financial support through child support payments.

Just like Adverse Childhood Experiences (ACEs), the SDOH should be mitigated as much as possible. Courts, legal practitioners, and parties involved in court cases—especially those involving children—should be educated on both ACEs and SDOH. At the very least, ACEs and SDOH provide frameworks for decision-making. Ideally, they guide the types of lifestyle choices that should be encouraged for parties involved in family law litigation.

Moreover, the SDOH can be applied more broadly in all areas of the legal system. For example, if a party in traffic court cannot afford a fine, they should receive an immediate referral to a job program, located within the courthouse. This approach would promote employment and accountability, rather than relying on community service or fee waivers. In this way, courts could serve as hubs for social development, rather than places where marginalized individuals face additional hardships without a sense of justice being achieved.

How to Get What You Want from the Family Law Judge

Your judge is human. They do not know your family or situation beyond what you present in court. It is your responsibility to provide the judge with the information they need to make a decision in your favor. Without the right information, presented clearly and effectively, you will not achieve the result you want.

It is important to understand that unless something significant has changed in your case, the law generally favors maintaining the status quo. As the saying goes, “If it ain’t broke, don’t fix it.” However, changes may be necessary if they will improve the situation or reflect current circumstances. Sometimes, the mere passage of time can warrant a change in the order.

If you are advocating to keep things the same, you need to show the judge that no significant change has occurred to justify a new court order and that the current arrangement is working well. Provide specific examples of how maintaining the current order produces the best outcome. The more compelling your examples, the stronger your argument. If your examples are weak, you risk showing the judge that the current arrangement is not ideal, and they may be more inclined to make a change.

On the other hand, if you are seeking a modification, you must provide specific, significant examples of how the proposed change will produce better results. Each change you request will likely require a court order, and every court order must be supported by substantial justification. To do this, you need to present a clear, concise, and compelling story with facts that demonstrate the importance of each order you are requesting.

Another crucial point to understand is the concept of burdens and standards of proof. If you are the one requesting the court order, you bear the burden of proving why the court should grant it. The standard of proof dictates how much evidence is required to meet this burden. In most family law matters, the standard of proof is “more likely than not.” This means you must show that it is more likely than not that you are entitled to the order you are requesting. The judge will weigh your argument against the opposition’s and determine which side is more likely to be correct. In numerical terms, the winning party must prove their case by 50.0001%.

To succeed in court, you need to know your audience (the judge), know what you want, understand what you need to prove, and how much evidence you need to meet the standard of proof. By applying this strategy, along with the proper use of forms, declarations, and discovery, you increase your chances of winning—provided you meet your burden and the standard of proof required.

Rebutting the Presumption Against Custody in Domestic Violence Cases

There is a legal presumption that a parent who commits domestic violence should not have custody of a minor child. However, this presumption can be rebutted. Rebutting a presumption means disproving the underlying fact that supports the presumption. In cases involving domestic violence, the presumption is that a parent who commits domestic violence is unfit to have custody of a child. Rebutting this presumption means proving that the offending parent is actually fit to have custody and that such custody would be in the child’s best interest.

An example of rebutting the presumption might involve the offending parent demonstrating that the non-offending parent does not have a strong relationship with the child, and leaving the child in their care would be detrimental. Alternatively, the offending parent may show that the non-offending parent has a substance abuse problem, and that exposure to this issue would be more harmful to the child than exposure to the offending parent.

In addition to proving that the offending parent having custody is in the best interest of the child, the offending parent may be required to participate in certain services and follow all legal requirements. To effectively rebut the presumption against custody, the offending parent should complete and comply with the following:

To successfully prove that the presumption against custody has been rebutted, the offending parent will need to present credible evidence. This evidence should include the following:

Credible evidence refers to any evidence that is admissible under the evidence code and is trustworthy and believable. This includes testimony from reliable witnesses, experts, and representatives from the programs the offending parent participated in, who can speak to their meaningful participation. To make a request and present your evidence, you should prepare and present your case as you would for any other legal matter, hearing, or trial in family law court.

Domestic Violence and Custody: What You Need to Know

If a parent has been found to have committed domestic violence against any of the following individuals, there is a legal presumption that the perpetrating parent should not have legal or physical custody:

Under California law, when a court issues a custody and visitation order, it must consider what is in the child’s best interest. The determination of a child’s best interest varies from case to case, so there is no universal rule for every situation. However, it is clear that domestic violence is not in the best interest of a child.

The presumption against granting custody to a parent who has committed domestic violence means that it is assumed the offending parent should not have custody, as this would not be in the child’s best interest. Unless the court receives compelling evidence to the contrary, the judge is required to award sole legal and physical custody to the other parent. This presumption applies to any domestic violence committed within the last five years.

That being said, the presumption can be rebutted. To rebut a presumption means to present strong evidence that undermines the assumption underlying the presumption. In this case, to rebut the presumption, the parent must prove that the child’s health, safety, and welfare would be best protected by allowing the offending parent to have custody. The law presumes that domestic violence causes psychological trauma to children, regardless of the specific circumstances. Therefore, there must be a compelling reason for the court to disregard this presumption.

One way to attempt to rebut the Family Code Section 3044 presumption is to participate in programs that demonstrate accountability, growth, and remorse. If a parent remains defensive, denies the violence, or shows no remorse, the court will likely conclude that the underlying issues that led to the domestic violence remain unresolved, and custody will be denied. To have the best chance of regaining custody after a domestic violence finding, the parent should approach the process with humility, show personal growth, and express to the court how this growth has made them a better parent. Additionally, the parent must convincingly explain why granting them custody would be in the best interest of the child.

I am a Victim of Domestic Violence and CPS Just Took My Kids

This situation occurs more often than many people realize. To clarify, Child Protective Services (CPS) does not remove children from their homes simply because a parent is a victim of domestic violence. Rather, CPS intervenes when children have likely been exposed to domestic violence in some way. Such exposure can be emotionally, and possibly physically, traumatic. CPS’s primary goal is to protect children from these harmful effects.

A parent who is a victim of domestic violence but remains with the perpetrator places their children at risk of being exposed to the violence. This exposure may happen directly, through physical abuse of the children, or indirectly, by the children witnessing the abuse of another person. The failure to protect children from exposure to violence is often the reason CPS may remove children from a parent who is a domestic violence victim.

When CPS removes children, a case is opened in the dependency court. The purpose of dependency court is not to punish parents; any punishment for wrongdoing would occur through the criminal court. Instead, the goal of dependency court is to protect children from abuse and neglect. While the removal of a child may feel punitive to the parent, the sole concern of the Department of Children and Family Services (DCFS) is whether the child is safe from abuse or neglect. If the child is safe, the case may be transferred to another court.

Sometimes, parents find themselves in situations beyond their control, but this does not excuse allowing a child to be exposed to domestic violence. If you are a parent and a victim of domestic violence, your first priority should be ensuring the safety of your children. After that, you should seek an order of protection to prevent future abuse. It is also crucial to end your relationship with the abuser and ensure your children are not exposed to any further abuse. This may require going to court to obtain a domestic violence restraining order, which can include custody orders.

If you have an open dependency case, it is essential to fully engage with the services provided to you in order to regain custody of your children. It is also important to have legal representation throughout this process, as every parent has the right to appointed counsel in dependency cases.

Adverse Childhood Experiences (ACEs) and How They Apply in Family Law

Adverse Childhood Experiences (ACEs) are traumatic incidents experienced during childhood that significantly shape how individuals navigate the world as adults. Some common ACEs include:

These experiences can profoundly impact both mental and physical health and are strong predictors of delinquency, poverty, obesity, and other social challenges that people face throughout life. In family court, the goal is to prevent children from being exposed to ACEs. Although family attorneys are not specifically trained in ACEs, these issues are frequently addressed in court. The California Welfare and Institutions Code and Family Code specifically prohibit exposing children to certain ACEs.

For example, physical, sexual, and emotional abuse and neglect will trigger a dependency case under the Welfare and Institutions Code. Meanwhile, domestic violence, substance abuse, and other forms of adversity and instability are key factors used by the Family Court to determine custody and visitation orders. ACEs provide an effective framework for viewing cases involving children. If the objective is to protect children from exposure to ACEs, every custody and visitation case should address ACEs and consider how the proposed orders will either shield the child from or expose them to these traumatic experiences.

One thing to keep in mind about ACEs is that they highlight only the traumas. A simple way to identify the positive aspects of parenting is by flipping each ACE—for example, transforming physical, sexual, and emotional abuse into physical, sexual, and emotional safety. The Family Code sets a basic standard for protecting a child’s health, safety, and welfare, as well as promoting frequent and continuing contact between both parents. However, the Family Code also leaves room to consider positive elements of parenting beyond just avoiding harm. These positive elements include:

There are many other examples of positive parenting to consider. ACEs should be the starting point in any analysis, followed by considering the positive opposites of each ACE. Additionally, more nuanced benefits of the parent-child relationship should be factored in when deciding custody and visitation orders. This approach can help effectively argue and determine what is in the “best interests of the child” in family court.

An additional tool that can be used alongside ACEs is the Social Determinants of Health (SDOH), which further explores the factors influencing a child’s well-being.

My Spouse Owned a House Before We Were Married, But We Paid for it During Marriage: How do I Determine My Share?

In California family law, if a spouse owns property prior to marriage, that property remains their separate property after marriage. If they sell the property, any proceeds from the sale are considered separate property, even if the sale occurs during the marriage. Additionally, if the property generates rental income, that income is the spouse’s separate property, regardless of whether it is earned during the marriage. The only time a spouse may be entitled to a portion of the other spouse’s separate property is if community property funds were used to pay for that property.

Community contributions to a spouse’s separate property typically occur when the mortgage or loan payments on the property are made with income earned during the marriage. Since income earned during the marriage is considered community property (even if the spouse held the job prior to marriage), any mortgage payments made with that income are treated as community contributions toward the separate property. Furthermore, if a spouse refinances their separate property during the marriage and uses community property income to pay the new loan or mortgage, the entire property may be classified as community property.

If there is no refinance, the community is entitled to a proportional share of the property, based on the extent to which community property funds were used to pay down the mortgage. However, if there is a refinance, the community may be entitled to claim the entire property as community property. Each spouse is entitled to one-half of all community property.

The method used to calculate a spouse’s share of the other spouse’s separate property is called the Moore-Marsden Calculation, named after two court cases: Moore, which established the calculation, and Marsden, which refined it. To apply the Moore-Marsden Calculation, the following four pieces of information are needed:

The calculation involves the following six steps:

Step One: Determine the amount by which community property funds were used to pay down the principal.

Step Two: Calculate the community property percentage share by dividing the amount from Step One by the purchase price of the property.

Step Three: Calculate the appreciation in the value of the home during the marriage by subtracting the purchase price from the current value of the home.

Step Four: Calculate the community property’s share of the appreciation by multiplying the percentage from Step Two by the amount from Step Three.

Step Five: Calculate the total community property interest by adding the amount from Step Four to the amount from Step One.

Step Six: Divide the total community property interest (from Step Five) by two to determine each spouse’s share of the community property interest.

This amount does not have to come directly from the house. For example, if the community property interest is calculated to be $50,000, the spouse who owes that amount can pay it using any of their separate property or their share of community property. Additionally, this amount can be used to offset any other payments one spouse may owe the other. This process is called an “offset.”

Alternative to Family Court: Arbitration

Arbitration is sometimes a more effective alternative to court action for family disputes. Using alternative dispute resolution approaches, such as arbitration might help resolve problems that a family court judge would otherwise handle. Instead of having to appear in court, spouses or ex-spouses may utilize the arbitration procedure. Many individuals feel that less adversarial outcomes are more likely when using arbitration.

Arbitration is a process in which a trained, neutral third party hears both sides of a dispute and then makes a binding decision on the matter. This can be an attractive option for couples who want to avoid the public nature and formalities of court proceedings. It can also be less expensive than going to trial, and it can be completed in a shorter time frame.

When Can You Use Arbitration?


Arbitration can be used for a variety of family law disputes, including but not limited to:

How Do You Agree to Use Arbitration?


In order for arbitration to be binding, both sides must agree to use this method to resolve their dispute. This can be done by signing a contract that states that you agree to arbitrate your dispute. Alternatively, you and the other party can go to an arbitration hearing without having previously agreed to arbitrate. If you do not agree with the arbitrator's decision, you can still go to court to have a judge hear your case.

Who Should Consider Arbitration or Other ADR Methods?


Several families can use arbitration and other ADR methods when looking to dissolve a dispute. A family may consider using an arbitration provision in an agreement with a spouse if:

Some couples may not be suited for arbitration because they cannot communicate or work together to decide. If a couple cannot agree on the use of arbitration, it is likely that they cannot agree on the terms of their divorce. In this case, it may be best to let a judge hear the case and decide.

Contact us if you are looking to use arbitration to resolve a family law dispute. We can help you determine if this is the best option for your situation and, if so, we can assist you in drafting an arbitration agreement or contract. We can also represent you at an arbitration hearing.