Contested Divorce? What Types of Evidence that Can Help?
Unless you and your spouse agree to all matters concerning child custody, parenting time, and the division of marital assets, your divorce is considered contested in California. If your divorce is contested, it means that you will likely have to go to court and prove why these matters should be decided in your favor. This will require evidence.
The Types of Evidence Available in Divorce Cases
There are two types of evidence that can be used in contested divorce cases, including written evidence and oral evidence.
- Written evidence involves any type of documentation the is in written or digital format, This documentation can include receipts, contracts, emails, text messages, or even written evidence that your attorney obtains through the discovery process, such as interrogatories, which are questions that one party poses during a civil proceeding and the other party is legally required to answer.
- Oral evidence, which involves information that comes through spoken word, such as the testimonies of witnesses, experts, and even the other party being called to the stand. Statements made during depositions are also considered oral evidence, even if they are provided through a written transcript of the deposition.
Evidence Pertaining to Property Division
In order to have a successful outcome to your petition regarding property division matters, you must be able to produce oral or written evidence that shows:
- Whether the marital property was obtained during the marriage or was brought to the marriage by one of the spouses.
- Whether a property was obtained by one of the spouses as a gift or inheritance.
- Information involving assets that can be included or exchanged in order for there to be an equitable division of property.
Evidence Pertaining to Custody Matters
Child custody matters are one of the most common sticking points in divorce cases, and with good reason. The types of evidence that you need in order to prove your stance in a divorce that has contested custody matters include:
- Evidence that can give the court a general impression of the mental and physical fitness of each parent to carry out the responsibilities of parenting.
- Evidence that displays the child’s specific current and future needs. If the child has a physical disability that one parent is better able to handle, evidence of the disability and what makes one parent better suited to handle the challenges would be necessary. If one parent lives closer to the child’s school and is better able to serve as primary custodian during the workweek, that evidence is also considered.
- Evidence proving that one parent has been physically or emotionally abusive to the child, or poses other hazards — such as addiction — to the child’s well-being.
- Evidence to show that one parent is better able to provide a stable living situation for the child.
Evidence Pertaining to Support Matters
Spousal and child support are also common sticking points that lead to contested divorces. Child support orders are set using state guidelines. However, the ultimate amount of child support awarded depends on a number of factors, including:
- The incomes of both parents.
- The amount of parenting time each parent has with the child.
- The tax deductions available to each parent.
- The amount of mandatory payroll deductions for items such as health insurance or pensions.
- The amount of child support costs each parent is responsible for.
A judge will also consider whether the awarding of spousal support to one of the spouses is appropriate in the case. There are two types of spousal support:
- Temporary support is support that one spouse is ordered to pay for only a short period of time during the separation. This support is intended to help one of the divorcing spouses to get back on their feet and begin earning an income that can support them.
- Permanent or long-term support is support that is ordered to be paid in monthly payments over a longer duration of time. Like most states, California rarely awards truly permanent, lifetime support benefits, although these orders can occur and are most commonly linked to cases in which there was a long marriage and one spouse’s income provided support for the other through much of that time.
Spousal support is determined by primarily considering the incomes of both spouses, while also taking into consideration the tasks each spouse had in the marriage regarding earning an income or providing household services, as well as the earning potential and opportunities to increase income that each spouse has.
The guidelines that govern child support in California are put in place with the assumption that a parent’s principal obligation is to support their children, and both parents are mutually responsible for meeting this obligation.
Contested Divorce? Pedrick Law Group Can Help You Gather Evidence
A contested divorce is filed in court just as any other divorce is. However, the divorce becomes contested when one of the parties files a response in disagreement to the provisions of the divorce petition within 30 days after the petition has been filed. At that point, the process of discovery begins, which is a time in a case when the attorneys from either side can obtain evidence from the other, including depositions, answers to interrogatories, and other written or oral evidence that will help show the court why you want the provision to be different than what is presented in the petition.
It is important to note that many divorces that began as contested can be resolved through the divorce mediation process, which involves both sides sitting down with a third-party attorney mediator who can assist them by facilitating a conversation in which the spouses reach an agreement about how to handle the issue that is being contested.
Gathering evidence is a complex part of a contested divorce case, as there are court requirements as to how evidence must be collected, as well as how that evidence can be used. Let an experienced family law attorney from Pedrick Law Group, APC help you gather the evidence needed to explain why you are taking the position on the matter that you are. For a consultation, contact us online or by calling 949-388-8682.