Contemplating divorce may be one of the toughest decisions you can make. Naturally, you are likely to seek out advice from your friends and family. However, while your friends and family likely have the best of intentions, many of them may give you misleading advice that has been shaped by common myths about divorce.
With that in mind, we wish to clarify some of the more common misconceptions about divorce, and what you can do to avoid making your decisions based on incorrect information.
1. Hiring a Lawyer Means You Give Up the Right to Make Decisions About Your Case
False. The purpose of hiring a lawyer is to help you get the most out of your divorce. To do this, your lawyer will have your best interests in mind. He or she will provide advice, explain the process, and help negotiate with the other party. Most importantly, the lawyer’s job is to know the laws and procedures required to fight for your rights. You should not attempt to handle your divorce alone. Doing so may result in you losing the assets you are entitled to and can end with an unfavorable child custody arrangement.
2. Contested Divorces Always Go to Trial
False. Even the most difficult of divorce cases can most often be settled before proceeding to an expensive trial. Your skilled lawyer will attempt to work with the other party to reach a settlement without the need for trial. The threat of trial is often used as a negotiating tactic to persuade one party to settle rather than undergoing a costly divorce trial. You and your former spouse will also have an interest in avoiding putting fate in the hands of a trial judge. Thus, taking a divorce case to trial often results in an unfavorable outcome for both parties.
3. Your Divorce Must Be Filed In the State Where You Were Married
False. As long as you or the other party is a legal resident of the state where the divorce is filed, the divorce can be filed in that state. However, each state will have its own rules about how long a person must be in the state before he or she is considered a legal resident and is able to file for divorce in that state.
4. The Father Never Gets Custody of the Children
False. Determining child custody is one of the most difficult parts of a divorce case, and often leads to the bitterest of battles between spouses. Oftentimes, child custody cases become a race to see which spouse can make the other appear to be an unfit parent. This is because the standard used in California is based upon the child’s “best interest”. This gives the court wide discretion to grant custody to the spouse that can best safeguard the child’s health, education, safety, and overall welfare. Thus, the court will consider the total circumstances of both parties and award custody to whichever parent best serves the child’s best interests, whether it is the mother or the father.
5. Children Have No Say In Which Parent Will Have Custody
False. According to California Family Code section 3042, the court must give weight to the preferences of the child, if the child is of “sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation.”1 If the child is age 14 or older, the court must give weight to the child’s personal judgment, unless it finds that to do so is not in his or her best interest. The judge is not required to grant the child’s wishes, but will consider his or her opinion when making a custody decision.
6. The House Belongs to the Spouse Whose Name is on the Title
Maybe. California is a community property state, which means that all property acquired during marriage is presumed to belong to both spouses, unless it was acquired by special circumstances such as inheritance or as a gift. If the property is intended to belong to only one spouse, that intention must be declared in either a separate written agreement, or on the face of the title document itself, such as a deed which states “the sole and separate property of John Doe.” Simply placing title under one spouse’s name does not guarantee that the court will give the property to that spouse.
Even if you owned your house before you were married, it is still possible for your spouse to gain an interest in your home. For example, mortgage payments that are made with community property funds (such as wages earned while married) can give an interest in the property to your spouse. This means that upon divorce, you may have to reimburse his or her interest to keep the house as your separate property.
7. You Have to Show the Court That You Have Good Reason to Get a Divorce
False. In 1970, California became a “no-fault” state, meaning that divorce no longer requires that the spouse who wanted to leave the marriage had to show that the other spouse had committed a wrongful act. This means that if a spouse wants to end the marriage, he or she does not have to provide a reason, and the other spouse cannot deny their spouse the right to a divorce.
8. An Adulterous Spouse Loses His or Her Right to Property
False. Divorce, under the no-fault rule, is viewed by the court as the division of a monetary unit. Misconduct during the marriage, such as a spouse having an affair, does not generally affect how the property is divided. The court’s only concern is that the marriage no longer works; why it does not work is not the court’s concern.
However, if you can prove that your spouse’s misconduct was related to the management of the marital property – such as using community funds to buy gifts as part of the affair – the court may consider that conduct as reason to distribute more property to you instead of your spouse.
9. All Divorces End in Bitterness and Resentment
Depends. While it is probably true that there is no such thing as a “painless” divorce (most divorces are emotionally and mentally draining experiences), divorce can be handled in a civil manner between both parties. Of course, there are many divorces that end with a great deal of anger between spouses; but oftentimes, an agreement can be reached with few discrepancies among spouses. How a divorce ends is largely dependent on the willingness of the parties involved to cooperate with one another.
10. I Can Withhold My Child Support Payment If My Ex Does Not Allow Me to Visit the Children
False. Child support and visitation are separate issues. Your child support payment is not an admission fee to see your children. It is a court-ordered responsibility (or, an agreement you made with your former spouse) that you have to fulfill regardless of whether your ex prevents you from seeing your children. Withholding child support payments could result in serious legal consequences, and will not help you see your children.
If your ex-spouse prevents you from seeing your children in violation of the custody order, your next step should be to call your lawyer, and pursue legal action against your spouse for breaking the visitation agreement, which may include petitioning the court to give you custody.
Call the Family Law Attorneys at Wallin & Klarich Today
If you are planning a divorce, you need to hire a skilled divorce attorney right away. A skilled divorce attorney will have a strong understanding of the law and experience in handling the complex divorce process. At Wallin & Klarich, our skilled and knowledgeable family law attorneys have over 30 years of experience helping clients obtain the best possible outcome in their divorce.
With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, an experienced Wallin & Klarich family law attorney is nearby no matter where you work or live.
For a free phone consultation, call (888) 749-7428 today. We will get through this together.