What Is a Contested Divorce in California?

A person asking this question may have just heard something that changed the picture: a spouse said they will "fight it," refused to discuss the house or the children, or hired a lawyer and stopped talking. A person in San Diego County in that position is often trying to work out what "contested" means legally before deciding anything, whether the case is now headed for a courtroom, and which parts of their life a judge will be deciding.

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This article explains what makes a divorce contested under California law, what a court decides, how the process moves through the Superior Court of California, County of San Diego, and how attorney's fees can be shifted between spouses. It also covers what happens when children are involved and when one spouse does not want the divorce at all.

Under Family Code section 2310, a California divorce may be based on either of two grounds: irreconcilable differences that have caused the irremediable breakdown of the marriage, or permanent legal incapacity to make decisions. The section's grounds do not refer to wrongdoing or to the other spouse's agreement, and under Family Code section 2335, except as otherwise provided by statute, evidence of specific acts of misconduct is improper and inadmissible in a proceeding for dissolution. When people call a case "contested," then, they usually mean that the terms are in dispute, not the divorce itself.

A divorce becomes contested when the spouses cannot reach full agreement on one or more of the issues the court must resolve, including property division, spousal support, child custody and visitation, and child support. One unresolved issue is enough. A couple can agree on the house and the retirement accounts and still have a contested case because they disagree about where the children will live.

An uncontested divorce is the opposite: both spouses agree on everything and put those terms in a written marital settlement agreement, which is a contract that resolves every issue in the case. The court reviews it and enters judgment. In a contested case, at least one issue is left for a judge to decide after hearing evidence.

"Contested" describes where a case stands, not how it ends. A contested case can settle before trial, and a case can move from contested to uncontested at any point before judgment if the spouses reach a complete agreement. What the label does signal is that preparation matters: the evidence, the disclosures and the legal arguments need to be ready in case a judge, rather than the spouses, ends up making the decision. In San Diego County, these cases are heard by the Superior Court of California, County of San Diego. A broader overview of what court involvement looks like appears in the site's guide to contested divorce in San Diego.

Family Code section 760 sets the starting point for property: all property acquired by a married person during the marriage while domiciled in California is community property, except as otherwise provided by statute. Under Family Code section 2550, the court divides the community estate equally, unless the spouses agree otherwise in writing or by oral stipulation in open court, or the Family Code provides otherwise. Separate property is not divided. Under Family Code section 770, separate property includes all property owned before marriage; all property acquired after marriage by gift, bequest, devise or descent; and the rents, issues and profits of that property.

Characterizing, tracing and valuing property in dispute is covered on the site's page on financial disputes in divorce.

Spousal support is decided under Family Code section 4320, which lists circumstances the court must consider, including the extent to which each spouse's earning capacity is enough to maintain the marital standard of living, the supported spouse's marketable skills and the job market for them, and the time and cost of any education or training needed. The list continues well beyond these items. More on contested spousal support is available on a separate page.

Child custody, covering both legal custody (decision-making) and physical custody (where the child lives), is decided under the best-interest standard in Family Code section 3011, explained in the custody section below. Child support follows the statewide uniform guideline in Family Code section 4055, CS = K[HN - (H%)(TN)], where HN is the high earner's net monthly disposable income and H% is the approximate percentage of time the high earner has or will have primary physical responsibility for the children compared to the other parent. Disputes often center on what a parent's income really is; the site's page on contested child support addresses those fights.

Underneath every one of these issues are the sworn financial disclosures. Each spouse serves a preliminary declaration of disclosure with the petition or response, or within 60 days of filing it, unless the spouses extend that time by written agreement or the court extends it by order (Family Code section 2104(f)). Under Family Code section 2105(a), each spouse must also serve a final declaration of disclosure and a current income and expense declaration, executed under penalty of perjury, before or at the time the spouses agree on property or support issues other than temporary support, or, if the case goes to trial, no later than 45 days before the first assigned trial date. The spouses may stipulate to a mutual waiver of the final declaration, but under Family Code section 2105(d) the waiver must be executed under penalty of perjury, in open court or by separate stipulation, and must include the representations the section lists, including that both parties have complied with section 2104 and that the preliminary declarations have been completed and exchanged.

A California divorce begins when one spouse, the petitioner, files a petition, which must state facts including the date of marriage, the date of separation, the number of years between them and the number of children, if any. The petitioner then has the other spouse, the respondent, served with the summons and petition. Under Family Code section 2320(a), except as provided in subdivision (b), a judgment of dissolution may not be entered unless one of the parties has been a resident of California for six months and of the county in which the proceeding is filed for three months before the petition was filed. Under Family Code section 2339, and subject to the exceptions in sections 2340 to 2344, no judgment ends the marriage until six months have passed from the date the summons and petition are served or the date the respondent appears in the case, whichever occurs first. The court may extend that period for good cause.

The respondent then files a response, which sets out where that spouse agrees and disagrees. The preliminary declarations of disclosure follow on the timeline described above. A contested case can include discovery: the formal, court-supervised exchange of information. Discovery tools include written questions answered under oath (interrogatories), requests for documents, subpoenas to banks, employers and other third parties, and depositions, where a witness answers questions under oath before a court reporter. This is how hidden income, missing accounts and disputed values are tested with evidence obtained through lawful process.

While the case is pending, either party may ask the court for temporary orders. The court may order spousal support and child support on application of either party (Family Code section 3600), may make an order for the custody of a child during the pendency of a proceeding (section 3022), and, on application, may issue ex parte orders restraining the transfer of property and protective orders (section 2045). A party asks for orders with a Request for Order (form FL-300) (California Rules of Court, rule 5.92). Orders that apply while a case is pending are also covered on the temporary orders page.

When custody or visitation is contested, the court must set those issues for mediation under Family Code section 3170. In San Diego County, that mediation is child custody recommending counseling with the court's Family Court Services, and the counselor may make a written recommendation to the court, as explained in the next section.

Settlement conferences and negotiation can run alongside all of this. If issues remain, the case goes to trial, where the judge hears testimony, reviews evidence and decides each contested issue. Judgment follows.

When custody or visitation is contested, Family Code section 3170 requires the court to set the contested issues for mediation, and in San Diego County that process is child custody recommending counseling through Family Court Services. Under Family Code section 3183(a), the mediator, called a child custody recommending counselor (Family Court Services calls this person the Family Court Counselor), may, consistent with local court rules, submit a recommendation to the court about custody or visitation, provided the counselor has first given it in writing to the parties and their attorneys before the hearing. The court must ask at the hearing whether everyone received it. According to Family Court Services, if the parents do not reach an agreement, the counselor makes a recommendation and the court hearing proceeds. Under Family Code section 3170(b), domestic violence cases are handled by Family Court Services under a separate written protocol approved by the Judicial Council.

The judge decides custody. The judge applies the best-interest standard of Family Code section 3011, considering factors including the health, safety and welfare of the child; a history of abuse by a parent or anyone seeking custody against the child, the other parent or certain others; and the habitual or continual illegal use of controlled substances, the habitual or continual abuse of alcohol, or the habitual or continual abuse of prescribed controlled substances. Under Family Code section 3040(a)(1), when the court considers granting custody to either parent, it must consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent, consistent with sections 3011 and 3020.

Domestic violence findings change the custody analysis. The page on Family Code 3044 covers the presumption.

Emergency custody orders are covered on the page about emergency custody.

The practical gap between the two paths is mostly about who decides. In an uncontested divorce, the spouses decide every term, sign a marital settlement agreement and submit it; the court reviews it and enters judgment. The six-month period under Family Code section 2339, which is subject to the exceptions in sections 2340 to 2344, still applies, so even full agreement does not make the judgment final sooner.

Some couples qualify for summary dissolution, a simplified procedure available only to marriages that meet strict statutory criteria. The dollar limits on property and debts for that procedure are set by statute and adjusted periodically for inflation under Family Code section 2400(b), so any figure printed in the statute itself may not be current.

In a contested divorce, at least one issue stays open. The court sets hearings, discovery proceeds and trial becomes possible. The six-month period is a floor, not a ceiling; a contested case can take longer because discovery, hearings, custody counseling and court scheduling all take time.

The path is not fixed. A contested case can become uncontested whenever the spouses reach a full agreement. And if one spouse does not respond after being served, the case is not blocked: the summons gives notice that unless the respondent files a response within 30 days after service, the respondent's default will be entered on the petitioner's application (Code of Civil Procedure section 412.20(a)(3), (4)).

The difference in practice is the depth of preparation. A contested case may require subpoenaed records, deposition testimony, expert valuations and witnesses, organized well before a judge ever hears them. That is the work people usually mean when they look for aggressive representation: careful, prepared advocacy that is ready for court when settlement falls short.

Family Code section 2310 makes irreconcilable differences that have caused the irremediable breakdown of the marriage a ground for dissolution, and the section does not make the other spouse's agreement a condition.

A respondent who does not file a response within 30 days after being served does not stop the case. The summons gives notice that the respondent's default will be entered on the petitioner's application, but a judgment on default still requires proof of the grounds alleged, and the proof, if not taken before the court, is by affidavit (Code of Civil Procedure section 412.20(a)(3), (4); Family Code section 2336(a)). The page on what happens when a spouse won't sign covers this further.

A respondent who does respond has real rights. That spouse can dispute property characterization, values, support and custody, and those issues move through the contested process described above, with disclosures, discovery and hearings. What the respondent cannot do is keep the marriage legally intact against the other spouse's wishes.

So "contesting the divorce" in California usually means contesting specific issues, not the divorce itself. The site's page on what happens when a spouse refuses to negotiate covers this further. These proceedings, like all San Diego County family law matters, are heard in the Superior Court of California, County of San Diego.

Family Code section 2030 requires the court to ensure each party has access to legal representation, including early in the case. If necessary based on the parties' incomes and needs, the court may order one party to pay the other party, or that party's attorney, whatever amount is reasonably necessary for attorney's fees and the cost of maintaining or defending the case. This applies during the divorce and in proceedings after judgment.

Under Family Code section 2032, a fee award, and its amount, must be just and reasonable under the relative circumstances of the parties. The court considers the need for the award to allow each party, to the extent practical, enough financial resources to present the case adequately, taking into account, where relevant, the spousal support circumstances listed in section 4320.

Family Code section 271 works differently. It lets the court base a fee award on how far each party's or attorney's conduct furthers or frustrates the law's policy of promoting settlement and reducing litigation costs through cooperation. An award under section 271 is in the nature of a sanction. The court must consider all evidence of the parties' incomes, assets and liabilities, may not impose a sanction that imposes an unreasonable financial burden, and must give notice and an opportunity to be heard first. The requesting party does not have to show financial need.

The cost of a contested divorce can depend on the shape of the dispute: how many issues are contested, how complex the property and income questions are, whether experts such as forensic accountants or business appraisers are needed, and how long the case runs before settlement or trial.

Whether a divorce is contested depends on whether the spouses agree on the issues the court must resolve. A consultation is a place to raise questions about the rules above. San Diego Family Law Advocates practices California family law only.

To talk with the firm about a contested divorce, call San Diego Family Law Advocates at 858-758-2288 for a confidential consultation.