If California is a 50/50 custody and property no-fault divorce state, why should I get a lawyer?

Asked over 5 years ago - San Diego, CA

My husband wants a divorce. He has done horrible things, but he is a good dad. I didn't want this and I don't want my children only half time. He has accrued tremendous debt and had credit cards I didn't even know about. Everyone tells me to find a lawyer, but everything I read is that it will be 50/50 no matter what.

Attorney answers (3)

  1. Joseph Briscoe Dane

    Pro

    Contributor Level 20

    Answered . My practice is criminal defense, but in addition to the answers given by other attorneys, I hope you don't rely on "everything you've read" because it's not correct.

    "No fault" just means that the court doesn't have to figure out why the marriage isn't working out - the "irreconcilable differences" is the grounds for divorce. Essentially, it says "it just isn't working out and it won't work out."

    California is a community property state - what you may be referring to as a 50/50 state. 50/50 isn't really correct - there are many factors in play about what assets, income, and property are "community" and what are "separate." That can make a huge difference in who gets what property and what debt. Don't just assume everything is split 50/50.

    When it comes to the children - the courts will have to decide where is best for the children to live, then decide who gets what rights to the children - it matters in child support as well. Don't just think 50/50. Talk with a family lawyer, especially when kids are involved.

  2. Michael John Harrington

    Pro

    Contributor Level 17

    Answered . The court will do what the court believes is "in the best interests of the child"; that's the guiding principle and mandate in California courtrooms. "50/50 no matter what" is INCORRECT. Also, in practice most custody/visitation plans are NOT 50/50.

  3. Dianna Gould-Saltman

    Contributor Level 14

    Answered . In addition to Michael's good advice, while California is a community property state, all that means is that each of you should end up with a combination of assets and debts equal to the same amount as the other of you. That says nothing about whether you will receive a particular asset or a particular debt, or whether you will receive 95% of the debt balanced out by 95% of the assets and he'll receive only 5% of each. It also doesn't address the value of any of the assets (you may want the Toyota and he says it's worth $100,000. Would you agree to pay him $50,000 to keep it?)

    This also doesn't address the issue of child or spousal support. While child support is based on a relatively standard formula (assuming everyone agrees on each other's incomes), spousal support is a lot more discretionary for the court, especially long-term support.

    At a minimum you would be well-advised to pay the money to sit down with a family law attorney to understand what you potentially gain and risk in each category that is relevant to your situation.

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