Common Divorce Misconceptions in California
Being Family Law Attorneys in San Diego, we have run across a variety of different cases over the many years practicing family law. While there are common issues that come up in each divorce, not each divorce is the same. Just because you have a friend who went through a divorce with a certain outcome doesn’t mean that is what will happen in your divorce case. Here are common incorrect assumptions we hear in our family law practice.
Misconception #1: Denying visitation is okay when the other parent doesn’t pay child support.
This is a common misconception we hear from frustrated parents when their ex doesn’t pay child support. Just because your child’s other parent doesn’t pay on time or regularly, doesn’t give you the right to decide that he or she can longer see your child(ren). In California, child support and child visitation are separate issues and both must be decided in court. If your child’s other parent isn’t paying child support, you need to go to court to get this figured out, do not take it upon yourself to use “self-help” by denying the other parent court ordered visitation.
Misconception #2: If parents share 50/50 custody of their children, neither parent has to pay child support.
More often than not, this statement is false. Child support is calculated through a statutory formula by considering the after-tax earnings and the amount of time each parent has with their child. Typically, if one parent makes more money than the other, child support will be ordered
Misconception #3: A divorce automatically becomes final 6 months after a person files for divorce.
In California, there is a required 6 month waiting period before a divorce becomes final, but very few divorces are actually finalized by 6 months. In less complex divorces where there may be no minor children, small amounts of property or other assets, and there is no significant dispute over spousal support , they can be often be resolved well within the 6-month period. That said, the earliest your marital status can be dissolved is 6-months from the time that the filed Petition is properly served on the other spouse.
Misconception #4: If your spouse cheats on you, they will lose everything.
Many people assume that because your spouse cheated on you, they will look worse in front of the judge and lose everything, including child custody. Since California is a “no fault” state for divorce, the courts do not care why you are ending your marriage. Unless you can prove that the other parent is completely unfit because of their behavior, such as drinking/drug use,
Misconception #5: Mothers always get custody of the children.
Another common misconception that we hear is that mothers will always get custody of their children in a divorce. While many years ago, there may have been a bias for judges to award sole custody to mothers (“tender years doctrine”), this is no longer the case. Judges are to make decisions on custody with no preconceived social or cultural biases. The court system and the policy of the State of California is that both parents should play a significant role in their child’s life, unless there is proof that one person is unfit to be a parent, regardless of their gender.
Misconception #6: Common law marriage takes place after living together for 6 years.
California actually does not recognize common law marriage. In order to get married to another person in California, you need to do it legally by obtaining a marriage license and having a ceremony. However, some other states do recognize common law marriage and if you move to California, your common law marriage may be validated and you will be considered legally married in this state.
Misconception #7: Having a separate bank account protects your money.
This is another common myth that we hear in divorce cases. Just because you had a separate bank account under your name during the marriage, does not mean that money put in that account is protected from your spouse. Any money you or your spouse earn during your marriage is considered community property and your spouse can potentially receive half of that money. The only general exceptions to this rule are if your separate bank account has money in it that you can prove was earned before your marriage, was received by a gift or inheritance, or you had a Premarital Agreement that kept your property separate.
Misconception #8: The retirement money goes to the spouse who earned it.
Just because you had the higher paying job and retirement benefits, doesn’t mean that you will get to keep the retirement money. When you do not have a Premarital Agreement that dictates that your marital earnings remain your separate property, all earnings placed into retirement accounts are community property . This means that our spouse will be entitled to one-half of your retirement plan benefits that were funded during your marriage.
Misconception #9: Women will always get alimony in the divorce.
California law is not gender specific as to whom may be entitled to alimony. The court must take into account numerous factors when setting spousal support, such as:
The extent to which the earning capacity of each party is sufficient to maintain the
standard of living established during the marriage, taking into account all of the following:
The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.
The extent to which the supported party's present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
The extent to which the supported party contributed to the attainment of an education,
training, a career position, or a license by the supporting party.
(c) The ability of the supporting party to pay spousal support, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living.
(d) The needs of each party based on the standard of living established during the marriage.
(e) The obligations and assets, including the separate property, of each party.
(f) The duration of the marriage.
(g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.
(h) The age and health of the parties.
(i) All documented evidence of any history of domestic violence…
(j) The immediate and specific tax consequences to each party.
(k) The balance of the hardships to each party.
(l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a "reasonable period of time" for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court's discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.
(m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4325.
(n) Any other factors the court determines are just and equitable.
So, gender is explicitly not found as one of the above factors it will consider. Rather, the court will apply the facts to the law (see the factors above) when gauging to whom and how much support should be payable. Developing and successfully presenting the facts to a court requires an understanding and experience of a family law specialist.
Misconception #10: Divorce is ugly no matter what.
This is untrue, even though many divorced people might tell you that it is true. Yes, divorce can messy and emotional, which makes it difficult to navigate. However, there are plenty of marriages that end respectfully when both spouses handle themselves that way and treat each other kindly. Here are some great tips to help you have a civil divorce. You want to make sure the family law attorney you hire is a very knowledgeable and experienced advocate looking to help for you and your children through a very difficult time, and not someone who is simply looking to put up a fight at every turn.
We hope this article was helpful for you. As you can see, there are plenty of common misconceptions people have about divorce. It is vitally important that you hire a trusted Family Law Attorney who will talk about your marriage and the specific details involved so you can fully understand the reality of what is and is not true about your divorce. If you are getting ready for on in the middle of a divorce or have any questions about the process, don’t hesitate to reach out. We would love to set up your free consultation and help you move on easier.