California Divorce: Top 10 Myths
MYTH: Couples who live together for six years are considered married.
FACT: California does not recognize "common law" marriages. To obtain the rights of a married person (e.g. entitlement to spousal support), you need to be legally married or in a valid state registered Domestic Partnership. One exception: California will recognize a "common law" marriage if a couple lived in a state recognizing common law marriage, and met the requirements of a common law marriage, and then moved to California.
MYTH: Spousal Support is ordered for one-half the length of the marriage.
FACT: Many people believe that if spouses were married, for example, for 8 years, then alimony is automatically paid for half the length of the marriage. There is no California statute that provides spousal support will be paid for 1/2 the length of the marriage. While many courts and mediators use this a 'rough guideline', there are many factors that are taken into consideration when ordering support.
MYTH: Divorces are finalized six months after they are filed.
FACT: The earliest a divorce can be finalized is six months after the Petition has been filed and served on the other spouse. However, Divorce Judgments are not automatically entered after the six month period. Rather, all family law state and local procedures must be completed prior to entry of Judgment. You can still resolve your matter efficiently and quickly but the you will not be legally divorced until 6 months have passed and the Judgment has been signed your Judge.
MYTH: Inheritances are split when parties get divorced.
FACT: Except in rare circumstances, 100% of the inheritance is assigned to the spouse who received it. However, inheritances can be treated as "income" for purposes of ordering or considering spousal and/or child support.
MYTH: Prenuptial agreements are designed to protect the wealthier spouse and strip the other spouse of all of her or his rights.
FACT: Premarital agreements can be designed so that the needs of both parties are met. Premarital agreements which are unfair and one-sided are usually not enforceable in court. With a 'pre-nup' you will know in advance how your property will be handled if you don't stay married. The best part is that you get to negotiate property while you both still love each other and you are not at the mercy of 'divorce court' or a spouse who is angry or resentful.
MYTH: Mediation is the best option for every divorcing couple.
FACT: Mediation works for most divorcing couples. However, both spouses must be able to speak up for what's important to them in order to make the process work for them. Mediation may not offer enough protection or structure for some people; especially if one party has a history of domestic violence, anger management issues and/or substance abuse problems.
MYTH: I can discharge my spousal support or child support obligation by filing bankruptcy.
FACT: Support payments are not dischargeable in bankruptcy. In fact, they must be paid before any other creditor.
MYTH: Pet lovers / owners have no legal recourse to seek ownership of their animals.
FACT: In California, the Court may grant ownership to a pet owner and/or issue a restraining order to prevent the abduction or abuse of the family pet by the other spouse.
MYTH: If spouses share 50-50 custody of their kids, neither parent has to pay child support.
FACT: 9 times out of 10, this is wrong. Child support is calculated using a mathematical calculation balancing after tax earnings against each party's respective share of time with their children. Usually, if one parent earns more money than the other, child support will be ordered.
MYTH: One parent can deny custody or visitation to the other spouse if s/he fails to pay child support.
FACT: The Court considers custody/ visitation and child support as two separate issues. Legally, one parent cannot restrict child custody or visitation because the other parent fails to pay their support obligation.
Courtesy of Erin A. Levine, Levine Law Group, LLP
LLG provides personalized representation to individuals dealing with family law issues, civil litigation, estate administration and general legal matters. Our aggressive, collaborative, and compassionate advocacy produces results and finality. Our motto is straightforward: conferences as warranted, mediation if necessary, trial when required.
It’s that simple.