What Happens if You Can’t Settle Your Divorce Out-of-Court?


If you’re facing a divorce, your goal is very likely to settle it out of court. Divorce is complicated and emotionally fraught enough, and going to court ups the ante. The fact is that proceeding to court generally makes the divorce process not only lengthier but also more costly – in addition to the fact that you abdicate the decision-making power you and your ex maintain when you settle between yourselves. If you are moving in the direction of divorce, don’t put off consulting with an experienced California divorce attorney.

Settling Is Not All or Nothing

While your divorce will be specific to your circumstances and situation, the terms that you and your divorcing spouse will either need to negotiate or allow the court to determine on your behalf remain the same for every divorcing couple, including (as applicable):

  • The division of your community property
  • Your child custody arrangements
  • Child support
  • Alimony (or spousal support)

If you and your soon-to-be-ex can hammer out even one of these terms, it’s one less that the court will need to address. In other words, this isn’t an all-or-nothing situation.

Factors that Make Every Divorce More Complicated

While even those divorces that couples seem to breeze through have their own challenges, there are specific factors that universally make divorce more complicated from the outset, including:

  • If your divorce involves high assets
  • If you own a business
  • If you own multiple properties
  • If your finances are generally complicated

While you can expect these factors to make your divorce lengthier, there is no reason that any one of these should land your divorce in court. It’s very likely, however, that you will need to employ an alternative dispute resolution (ADR) option, such as mediation, to help you move through your divorce’s complicated financials toward a resolution you are both willing to sign off on.

Bad Faith

If your spouse is not operating in good faith, there is likely little you can do to turn this around, and moving forward toward court may be your only option. Common examples of spousal bad faith in divorce include:

  • Hiding, giving away, getting rid of, or spending down assets
  • Refusing to provide you with the financial documentation you need to move forward
  • Continually stalling the divorce process – by missing court, mediation, or deposition dates, for example
  • Attempting to put your shared children in the middle
  • Generally refusing to cooperate and/or actively throwing the proceedings into chaos
  • Hiring and firing attorneys in an effort to stall progress

If your divorcing spouse is operating in bad faith, the best path forward is likely cutting your losses and moving directly toward court.

The Division of Your Marital Property

Those assets that you and your spouse acquired over the length of your marriage are considered to be community property (regardless of who wrote the check or whose name is on it). This property is generally divided fairly equally between divorcing spouses in the State of California – or as close as possible.

Further, those assets that either of you brought with you into the marriage and kept separate over the years of your marriage will remain your separate property, but it must be said that the dividing line between the two can easily be blurred – or even erased. The division of community property is often one of the most contentious components of divorce.

Your Child Custody Arrangements

If your divorce involves children, your child custody arrangements are obviously another important factor. Child custody in California breaks down into both legal and physical custody. Legal custody defines who will be making important life decisions for your children, including those related to:

  • Their education
  • Their extracurriculars
  • Their religious upbringing
  • Their health care

One parent can take on this role, both parents can share it, or you can divide this responsibility between you according to different categories of decision. In other words, you have options.

Physical custody refers to how you and your divorcing spouse will divide your time between your children. The two general categories include one parent becoming the primary custodial parent (whom the children live with the majority of the time, while the other parent has a visitation schedule) or a relatively equal division of parenting time.

Between these two positions, parents can get as creative as they need to in order to find a good fit. Finally, it is very rare for the court to deny a parent at least some level of visitation with his or her children (unless it has a very significant reason for doing so).

Child Support

Child support is the state’s payment mechanism for ensuring that both parents continue to uphold their financial responsibility to their children’s support. Child support is based on a state calculation formula that takes both parents’ earnings and the amount of time they are each responsible for their children into consideration. This is why, even if you and your ex end up dividing your parenting time equally, the higher earner among you will very likely owe the other child support, which is in line with the court’s motivation to serve the best interests of the children.


Alimony is not a foregone conclusion of divorce, but if one of you experiences a divorce-based financial hardship and the other has the financial ability to help, spousal support may be appropriate. In addition to whether or not alimony will play a role in your divorce, there are also determinations of its duration and amount to consider.

If the court is making this determination on your behalf, it will take wide-ranging factors into careful consideration. Typically, alimony is intended to help the ex who experiences the financial downturn the time he or she needs to turn his or her finances around via further education, job training, or skill development.    

Seek the Experienced Legal Guidance of a California Divorce Attorney

If you are facing a divorce, the surest means of protecting both your financial and parental rights throughout the legal process is with a trusted California divorce attorney backing you up. If you and your divorcing spouse aren’t able to negotiate terms out of court, your experienced divorce attorney has the legal insight, drive, and focus to help guide your case toward a favorable resolution.