When spouses cannot agree on custody, support, or who keeps what, a San Diego family court judge may decide those questions for them. That is what makes a divorce contested. For anyone comparing a contested divorce lawyer in San Diego, one of the most useful questions to ask is how the lawyer prepares a case that may end in trial.
Trial work is at the center of our practice at The Law Office of Kevin Lemieux, APC. Since 2003, Kevin Lemieux has tried hundreds of cases, and he brings that courtroom experience to San Diego divorce cases where agreement is out of reach. Call (619) 488-6767 or reach out to schedule a free consultation about the issues still in dispute in your case.
What Makes a Divorce Contested in California?
One unresolved issue is enough to make a divorce contested, even when the spouses agree on everything else. Issues that commonly stay open include:
- Custody and parenting time
- Child support and spousal support
- Division of the community estate, meaning the property built up during the marriage
- Responsibility for debts
A contested divorce is not about proving fault. Under Section 2310 of the California Family Code, the grounds for divorce are irreconcilable differences or a spouse’s permanent legal incapacity to make decisions, and they are pleaded generally, so neither spouse has to prove the other did something wrong.
How a Contested San Diego Divorce Moves Through Court
A contested divorce follows the same path as any California divorce, which the law calls a dissolution of marriage. The difference is how far along that path the case travels. The main stages are:
- Filing: Under Family Code Section 2320, a judge can enter a judgment only if one spouse lived in California for six months, and in the county where the case is filed for three months, immediately before the petition was filed.
- Response and disclosure: The other spouse files a response, and Family Code Section 2104 requires each spouse to serve a preliminary declaration of disclosure, a sworn statement on a Judicial Council form of what that spouse owns, owes, earns, and spends.
- Temporary orders and trial: While the case is open, either spouse can ask the court for orders on custody, support, or property, and a judge decides whatever is still unresolved at trial.
Under Family Code Section 2339, a judgment cannot end the marriage until six months after the other spouse was served with the petition or first appeared in the case, whichever comes first. The court can extend that period for good cause, so six months is a minimum, not a schedule.
What Does the Judge Decide in a Contested Divorce?
The judge resolves each open issue by applying the test the Family Code sets for it.
| Issue |
What the Court Must Do |
Authority |
| Community property |
Divide the community estate equally, unless the spouses agree otherwise in writing or on the record in open court, or the Family Code provides otherwise |
Family Code Section 2550 |
| Spousal support |
Consider every circumstance the statute lists, including each spouse’s ability to pay and needs based on the standard of living during the marriage |
Family Code Section 4320 |
| Child custody |
Decide the child’s best interests using the listed factors, with the child’s health, safety, and welfare as the primary concern |
Family Code Section 3011 and Section 3020 |
Each of these issues can carry its own fight over facts, such as what an asset is worth in a property division dispute or what each spouse can earn when a court sets spousal support. When these fights reach a judge, each side has to prove its version with evidence, and preparing that proof is the work our trial-focused practice is built around.
What Happens If My Spouse Will Not Disclose Their Finances?
The court can order the disclosure and penalize the spouse who withheld it. A spouse who does not serve a required disclosure, or leaves out required detail, can first be asked to provide it. If that request goes unanswered, Family Code Section 2107 lets the other spouse ask the court to compel a further response, to bar the noncomplying spouse from presenting evidence on issues the disclosure should have covered, or both. The court must also impose money sanctions on a spouse who fails to comply with the disclosure rules, in an amount large enough to discourage it from happening again, and those sanctions include reasonable attorney’s fees, costs, or both.
The court can skip those sanctions only if it finds the spouse acted with substantial justification or that sanctions would be unjust under the circumstances.
Can a Spouse’s Misconduct Be Used in a Contested Divorce?
Generally, no, even when the divorce goes to trial. Under Family Code Section 2335, evidence of specific acts of misconduct is improper and inadmissible in a divorce case, including in depositions, which are sworn interviews taken before trial, and in discovery, the exchange of information between the two sides.
That bar gives way where another statute allows the evidence, and custody and spousal support are two examples. In custody, the best-interest factors include any history of abuse, so conduct that bears on a child’s safety belongs in front of the judge in custody and parenting time disputes. In spousal support, the listed circumstances include documented evidence of domestic violence between the spouses or against either spouse’s child.
Outside those areas, a case built around a spouse’s character does not change the tests the judge applies.
Talk With a Contested Divorce Lawyer in San Diego
A contested divorce can feel like your future is in someone else’s hands, especially when the disagreements involve your children or your home. At The Law Office of Kevin Lemieux, APC, Kevin Lemieux and our team can walk through the open issues in your case and what a judge would weigh in deciding them. If you need a contested divorce lawyer in San Diego, call (619) 488-6767 or contact us today to schedule a free consultation.
When spouses cannot agree on custody, support, or who keeps what, a San Diego family court judge may decide those questions for them. That is what makes a divorce contested. For anyone comparing a contested divorce lawyer in San Diego, one of the most useful questions to ask is how the lawyer prepares a case that may end in trial.
The court can order the disclosure and penalize the spouse who withheld it. A spouse who does not serve a required disclosure, or leaves out required detail, can first be asked to provide it. If that request goes unanswered,
