Uncontested vs. Contested Divorce in California: What's the Difference? Part 2

Any divorce is an emotional, financial, and often a physical strain. It can be the culmination of years of trying to find and fix what has broken a marriage. Sometimes it happens because people have grown apart; other times, it is because one party betrayed the marriage.

When the parties have simply grown apart or decided they are no longer compatible, the end of the marriage can often be handled uncontested,  where they can agree on the terms of every issue. In part one of this four-part blog series, we discussed the differences between an uncontested and contested divorce and what must be in place for the divorce to proceed in an uncontested fashion.

In part two, we will examine what drives a contested divorce, the mistakes people make when they handle one alone, and why the process is harder than it looks from the outside. In parts three and four, we will take a complex subject and frame it as a Q&A.

Before we begin, we would be remiss if we did not remind you of the disclaimer that accompanies all our articles:

Disclaimer: This blog constitutes general information and is not legal advice. This platform is not a law firm, and its employees, agents, or representatives are not acting as your attorney. The content and tools offered are intended to assist individuals in understanding and navigating the divorce process without an attorney but are not a substitute for advice from a qualified attorney licensed in your jurisdiction. To allow you to independently verify information, wherever a fact appears below, you'll find a link to the statute, court rule, or source behind it.

What Underlies a Contested Divorce

A contested divorce almost never begins as a fight about the thing people say it's about. Stand in the hallway outside a family law department at the Stanley Mosk Courthouse and ask two spouses what they're arguing over, and you'll hear "the house" or "custody."

Sit through the hearing and something else surfaces. One of them doesn't believe the other's numbers. One of them is doing arithmetic in their head about what life looks like on half the income and coming up short. One spouse is angry about a betrayal and wants an apology that no judge has the authority to order.

The distance between the stated dispute and the real one is what makes contested cases expensive, and it's what catches self-represented parties off guard. They prepare to argue about what they think is important, not what the law provides for.

This is reflected in many ways. In a division of assets, a spouse is often focused on what they envision their post-marriage lifestyle to look like rather than the reality that half the fair value of the assets will not support that vision. In the case of spousal infidelity, the aggrieved spouse wants to punish the other for the hurt and betrayal and cannot understand why the Judge will not award more to punish the bad behavior.

Then they discover that family court runs on documents, deadlines, and evidence rules, and that being right about the marriage is not the same as being right in the case.

This is a look at what's usually underneath a contested divorce in Los Angeles and Orange County, the errors people repeat when they represent themselves, and why the whole thing is genuinely difficult, not just tedious.

The Issues Really at Stake in a Contested Divorce

• One spouse knows the finances, and the other doesn't

One of the most reliable predictors of whether a divorce will be contested is whether one spouse knows and controls the marriage's finances.

In a large share of marriages, one person manages the accounts, files the taxes, tracks the retirement plan, and understands the income sources or what is the actual value of a business or a retirement account. Because of a knowledge gap or an overabundance of trust, the other partner goes along and signs where indicated. When the marriage ends, that arrangement converts overnight into a structural imbalance.

California responds with mandatory disclosure. Both spouses must provide the other with a Schedule of Assets and Debts and an Income and Expense Declaration whether or not they get along, and the preliminary exchange cannot be waived under any circumstance. The rule exists precisely because the spouse with all the knowledge has no natural incentive to volunteer anything.

Often, the less-informed spouse doesn't know what to ask for, whether the information is accurate, or has no basis to recognize what constitutes a thin financial disclosure. While the failure to properly disclose can have major ramifications, it does happen. Sometimes the failure to properly disclose can be an innocent mistake, such as what the true valuation of property is; other times it can be more ominous, like the failure to disclose a cryptocurrency account.

If a spouse believes the financial declarations are wrong, the remedy is to engage in discovery, which can include interrogatories (written questions and answers), production of documents, or deposition, which is questioning the spouse (or experts) under oath. All these paths can increase the cost and time of any divorce proceeding, but if you suspect the financials are not being reported accurately, they are absolutely necessary.

• The date the marriage ended

This is an issue that often surprises nonlawyers who do not understand why the date the marriage ended is important. California is a community property state, which means earnings and acquisitions during marriage generally belong to both spouses and everything after separation generally doesn't. This means the date of separation can be critically important in determining what is considered community property and what belongs to an individual spouse.

Consider this example. After a couple officially separates,  one of them wins the lottery for over ten million dollars. Is that community property? The official date of the separation becomes critically important to that determination. Another factor is whether the lottery ticket was purchased using community property funds (such as money from a joint bank account fed by active marital income earned before separation). If that is the case, the winnings or a portion of them may still be subject to community claims

Even in more mundane circumstances, the date of separation can be an important and contested point of fact. For example, if you move the date by six months in either direction, you can move a bonus, a vesting tranche, a commission, or a down payment from one column to the other.

Couples rarely separate on a clean date. Somebody moves into the guest room. Somebody keeps a key. They go to a wedding together in October and stop speaking in December. Each spouse then reconstructs a timeline that favors their side, usually without meaning to distort anything. Two honest people can hold genuinely different memories of when it was over, and the difference between those memories is worth real money.

• Support numbers that feel arbitrary from the inside

Child support in California runs on a statewide guideline formula driven by income and timeshare. Spousal support has a temporary calculation and then a longer list of statutory factors for anything post-judgment. On paper, this looks mechanical. It isn't, because the inputs are contestable.

Self-employment income can be characterized in several defensible ways. A parent who reduced hours to raise children may have income imputed based on earning capacity. Overtime that was reliable for a decade may or may not count going forward. Perquisites that reduce living expenses can be added back. Each of these is a legitimate argument, which means each is a place a case can stall.

There's also a mechanical link people miss - timeshare feeds the child support formula. A custody schedule and a support number are not independent variables. That connection quietly raises the temperature on parenting disputes, because a parent who suspects the other is seeking additional overnights for financial reasons will fight harder over the schedule than the schedule alone would justify.

• Custody as a container for everything else

Custody concerns or visitation rights are often among the most hotly contested issues in a divorce. Not living with or being able to see your children whenever you want can weigh heavily on any individual. These concerns are often exacerbated when your former spouse is introducing a new companion into the equation. A parent can feel erased by a divorce and totally replaced when a new person is dating their former spouse and interacting with their children.

While some custody disputes are about genuine parenting concerns, many times it is about jealousy or the fear of being replaced in the eyes of their children

Family court is a poor instrument for dealing with a spouse's personal jealousies or insecurities. It can also be extremely time-consuming and expensive. Judges must decide parenting plans in the child's best interest, not based on who behaved worse in the marriage. The National Center for State Courts, reviewing more than 147,000 domestic relations cases across eleven states, found that contested cases were more likely to involve minor children and more likely to generate ongoing court activity, and that roughly one in four family cases reopens after judgment. Cases involving children don't just get contested more often. They stay contested.

Fear is an underlying factor driving contested divorces

Fear, whether financial or about new custodial arrangements, is the main driving force pushing contested divorces to become more expensive and last longer. A spouse who has never carried a mortgage alone, or who is fifty-eight and looking at a retirement account that's about to be cut in half, or who left the workforce in 2011, is not being unreasonable when they experience fear of a new beginning. The Federal Reserve's 2024 Survey of Household Economics and Decision-Making found that 37 percent of American adults could not cover a $400 emergency expense using cash or its equivalent. Those households are not walking into a property division negotiation from a position of calm; they are watching their life and future implode.

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