Video #51 – Contested Divorce PART 1 (Introduction)

Video Transcript

Welcome to 

Christina:  This is Christina.

Ed:  This is Ed.  Today, we are going to talk about contested divorce cases.  We have a series of videos on contested divorces.  This first video is a brief introduction to contested divorce cases.

Christina:  At the start of my divorce, how do I know if I am going to have an uncontested case, a true default case, or a contested case?

Ed:  A lot of times you don’t know.  Oftentimes, a client will come into my office for an initial consultation and assure me that their case is going to be a simple, uncontested case.  Later, it turns into world war three.  Sometimes, when you are about to start a divorce, your spouse will be cooperative.  Perhaps they are cooperative because they are still hoping that there will be a reconciliation.  Perhaps they are cooperative at the start of the divorce but then get angry when they find out how much support they are going to owe or they find out an asset they thought was going to community property is actually your separate property.  Perhaps they are cooperative at the start of the divorce, but once you show up with a new girlfriend or boyfriend, things blow up.  There are any number of reasons why a divorce case is going to be contested, rather than uncontested.  In divorces, emotions can be volatile.  As divorce lawyers, we frequently see good people at their worst.

Christina:  Can the way I start the divorce influence whether my case is going to be uncontested or contested?

Ed:  Yes.  If you start the divorce by filing with the court an ex-parte motion to kick your spouse out of the family home and also seek a supervised visitation child custody order, then the case is probably going to be a contested case.  If you start the case in attack mode, you should expect your spouse or his or her lawyer to respond in kind. Before you start your case with an aggressive assault approach, think about a more gentle approach.  Contact your spouse, in person if possible or at least by email, and make the contact using a tone that will encourage settlement.  See if your spouse is willing to participate in settlement discussions, either directly with you or by using a mediator.  If your spouse refuses to participate in reasonable settlement discussions, then you are obviously going to at least start the divorce as a contested case.

Christina:  If the case starts as a contested case, does that me we are going to end up in trial?

Ed:  No.  It may take a year or longer to get to trial and there will be any number of court appearances along the way, including a settlement conference at the courthouse.  At any point, before you get to trial, you may be able to reach a settlement agreement with your spouse.   Very few cases actually go to trial.  If at any point in the contested divorce process, you and your spouse are able to negotiate a settlement agreement dealing with all issues, then you can complete the divorce as an uncontested case by following the step-by-step instructions in our earlier videos on how to process an uncontested divorce. 

Christina:  What if my spouse and I are never able to negotiate a settlement agreement?

Ed:  If you are never able to negotiate a settlement with your spouse, then your case will go to trial.  At trial, you and your spouse will present evidence, usually in the form of testimony and the presentation of documents.  At trial, you and your spouse will make arguments with the trial judge, trying to convince the judge why the judge should rule in your favor.  At the end of the trial, the judge will decide all of the disputed issues.

Christina:  How does processing a contested divorce case differ from processing an uncontested divorce case?

Ed:  There are differences, but there are also a lot of similarities.  In order to process a contested case, you need to follow most of the same procedures and fill out most of the same court forms described and explained in our earlier videos on uncontested divorces.  Almost all of the information about court forms and court procedures that we went over in the earlier videos also applies to “contested” divorce cases.  We are not going to repeat that information in this video or later videos.

Christina:  How do I start a contested divorce?

Ed:  Again, you start by watching our earlier videos.  Start by watching the first set of videos that include topics such as “Preliminary Considerations”; the differences between a divorce and a legal separation, the differences between a divorce and an annulment.  We have a video that explains all about court forms and how to use our Court Forms Database in which you will find all the court forms you will need to process your contested divorce and all of the forms are free.  You can fill out the forms on our website, save the forms, print the forms, and then file the forms with the court clerk.  Our earlier videos also include information about the different types of divorces and how local court rules for your particular county can affect how you process your divorce.  One of our earlier videos covers, “Initial Filings”.  In that video, we go over the court forms you need to start any divorce, whether the divorce is uncontested or contested.  Another one of our earlier videos explains how to apply for a fee waiver to avoid court filing fees if you can’t afford the filing fees.  Another video explains how to serve your Initial filings on your spouse.  So, you start your contested divorce by watching those earlier videos.

Christina:  After I file my initial court forms with the court to get my contested divorce started, then what do I do?

Ed:  You may want to apply for immediate temporary court orders, such as child custody and support orders.  You can get temporary orders from the court at the very beginning of the divorce to keep the peace and to maintain the financial status quo until you eventually get to trial.  We will discuss how to apply for temporary orders in a later video in this series.  However, I want to get back to the similarities between a contested divorce and an uncontested divorce.  After you get your initial paperwork filed with the court and served on your spouse, you will need to do your Preliminary Declaration of Disclosure documents.

Christina:  What are Preliminary Declaration of Disclosure documents?

Ed:  In a contested divorce case, just like in an uncontested case, you will need to fill out the various court forms that make up your “Preliminary Declaration of Disclosure” and then serve your spouse with your Preliminary Declaration of Disclosure documents.  Declarations of Disclosure documents are comprised of four court forms consisting of the following:  1)  Declaration of Disclosure, which is FL-140; 2) Schedule of Assets and Debts, which is FL-142; 3) Income & Expense Declaration, which is FL-150, and 4) Declaration Regarding Service, which is FL-141.  In order to understand the mandatory Preliminary Declaration of Disclosure documents, you need to watch our earlier videos on Declarations of Disclosure.  We are not going to repeat all of that information.

Christina:  Are there other earlier videos I should watch if I have a contested divorce case?

Ed:  Absolutely.  Almost all of the information contained in the earlier videos is also going to apply to contested divorce cases.  Our earlier videos include a series of videos which we call, “Getting Educated” videos.  In those videos, we set forth explanations regarding fundamental legal concepts including the following: community property vs. separate property; how to divide the family home; how to divide retirement assets; how to divide the family business; how to divide debt, including student loans; the different types of child custody arrangements; how child support is determined; and how spousal support is determined.  We explain common reimbursement claims that can be made as part of the divorce process.  We also explain how to request an award of attorney’s fees. Earlier videos also explain how to approach settlement discussions with your spouse and, if you are unable to negotiate a settlement on your own, how hiring a third-party mediator can save you a lot of time, money, and emotional trauma.  You need all of this information as a foundation before you proceed with a contested divorce.  You need to watch the earlier videos to have a basic foundation of knowledge before you can proceed with a contested divorce.

Christina:  In the next series of videos, we are going to explain how to obtain temporary orders at the beginning of the contested divorce process.


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