Well, during the initial stages of representing clients in divorce cases, many lawyers meet potential clients who tell them that, after discussions with friends, they know all of their legal rights in their case and how their divorce will proceed.
These clients will tell their lawyer that a friend, family member or even their hair stylist has been through a divorce and they have told them all they need to know about divorce, property issues, custody or support. Other times, the client will alert the lawyer that they have done their own research on the internet and they are completely up to speed on how divorce works.
It’s true that there is an overwhelming amount of information on the internet about the divorce process. And even though your family and friends may have your best interests at heart, their information may be specific to their case or situation, could be old and dated or may just be incorrect information from an inexperienced divorce attorney.
Surely, in those situations, much of that advice can be wrong or even from another state, which may have very different laws than California.
Top 9 Divorce Myths in California
Some of these myths about divorce can cause clients to make really bad decisions, decisions that may end up costing them money, time with their children or an ability to rebuild their lives and move on. That’s why it’s so important that early on in your case you must speak with an experienced Orange County divorce attorney to learn and understand the truth about the divorce process.
As a result, in order to correct some bad advice, we have put to together a list of the top 9 divorce myths that are widely believed, but are just not true.
Myth Number 1: Divorces are completed in 6 months
A common divorce myth is that your divorce will automatically be finalized and completed in 6 months.
Unfortunately, that is not necessarily true. The 6 month period is the minimum waiting period BEFORE you are even eligible to be divorced. It is not the time in which your divorce will be finalized. In other words, it is the earliest that a divorce can be finalized after you have filed and served the Petition for divorce.
In most situations, your divorce can drag out much longer than 6 months, sometimes years. Here at the Lalloway Law Firm, we do our very best to wrap up your case as quickly as possible.
Your divorce judgment will not automatically be entered after you wait for 6 months. Nothing will happen automatically for you. Rather, you must follow up with the court and either work out an agreement with your spouse or go to trial to get the judge to grant you a divorce. If you work out an agreement, you need to follow all of the procedures before you will granted a divorce.
After you complete all of the procedures, both state and local, you still need to wait until you receive a signed divorce judgment from your judge before you are officially divorced. None of this will happen unless you take the initiative and follow all of the the local rules to get divorced.
Myth Number 2: There will not be visitation if child support isn’t current
This is wrong. You cannot deny your spouse access to their children if they are behind on their child support payments. There is a process for enforcing all child support orders and you must follow that process, not just prevent your child’s other parent from visiting with their kids.
You should never threaten your ex-spouse that you will prevent them from seeing their children because they are not current with their child support payments.
In general, the court will only deny visitation when it has determined that the parent is an unfit parent or is a danger to the child, not because they are behind on their child support obligation.
Myth Number 3: If you cheat on your spouse, you lose everything
Many people mistakenly believe that if they have committed adultery that they could face severe limitations on the time they will be able to spend with their children in the future. But unless that parent is completely unfit because of their behavior, such as drinking and doing drugs, a court will not take into account the fact that a parent cheated on their spouse.
Other times, spouses feel that their cheating might cause a judge to dislike them so much that they will give their home and all of their assets to their spouse when seeking a divorce.
For over 40 years, California has been a “no fault” state for divorce. That means that you do not need a reason to get divorced. The actual reason you want to get divorced will have no impact on your case, unless your spouse has committed domestic violence.
Therefore, infidelity will have no relevance in your case.
Myth Number 4: Mothers will always get custody of the children
Many people feel that the kids will always go to the mother. But in the past while there may have been a bias for judges to award sole custody of the children to the mothers, the fact is that this is no longer the case.
While certainly custody is the most emotional part of any divorce, most judges try to make a decision without any preconceived societal or cultural bias.
The role of fathers in the lives of their children has changed dramatically over the past 25 years and the courts have finally caught up with that concept. Happily, the court system has caught up with the idea that both parents should play a significant daily role in a child’s life.
In California, decisions about custody and visitation will only be made based on what is in the best interests of the child. Courts will examine the family’s circumstances that have nothing to do with the gender of the parents.
Indeed, California has enacted Family Code Section 3040, which specifically prevents a court from using gender as a factor to determine custody and visitation. The Section states:
3040. (a) Custody should be granted …according to the best interest of the child…
(1) …In making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent, consistent with Sections 3011 and 3020, and shall not prefer a parent as custodian because of that parent’s sex…
Therefore, contrary to the myth that may exist about mothers always being granted custody, any evidence that a court takes into account the gender of the parents in awarding custody will be contrary to the policy and laws of the state of California.
Myth Number 5: You need a lawyer to get divorced
Some people think that before they can get divorced they must have a lawyer represent them in court. The truth is that most people who get divorced do not need to hire a lawyer. You can do the research yourself on the internet, talk to friends and family or use the Family Court Facilitator (FLF).
The FLF is an experienced family law attorney who can help you with your support issues. They work for the court system in Orange County and are available for free to anyone in Orange County if they have a current case. Although they are not your attorney, they can help guide you with some important issues you confront in your case.
In a few critical situations, you should always hire a lawyer to represent you. The first is when you have a contested child custody issue. The second is when you have significant assets at issue. In both cases, you need to be represented by an experienced Orange County divorce attorney to protect you having your children or your assets or money unnecessarily taken from you.
Myth Number 6: We are considered married if we live together for 6 years
Many couples erroneously believe that they can have a common law marriage in California if they have lived together for 6 years. Unfortunately for those couples, California does not recognize common law marriage. In order to get “married” in California, you need to get legally married by obtaining a marriage license and participating in a ceremony.
On the other hand, you can have a common law marriage in another state that recognizes that type of marriage and then later move to California. Subsequently, California will recognize your common law marriage from the other state and allow you to be legally married in our state.
Myth Number 7: Just fill out some forms and the court will take care of my divorce
Although California has one of the most simplified systems in the country for getting divorced, just filling out your divorce Petition will not get you divorced. You must follow through with the process and either come to an agreement with your spouse or participate in a trial with the court and obtain a judgment.
In order to obtain a final judgment will mean that you will need to make certain you have the right forms, fill them out correctly, file those forms with the court and follow up to make sure it was all done properly. It can be difficult. In short, you need to understand the laws as well as a skilled divorce lawyer.
That’s why if you have any complicated issues you should seek the assistance of an experienced Orange County divorce lawyer.
Myth Number 8: If I keep a separate bank account, that money will be mine
In many marriages, one spouse will keep a separate bank account in which they deposit their checks from their employer. The separate account will only be in the name of the individual spouse and not in joint names.
The spouses who keep those separate accounts believe that doing it that way will allow them to keep all of the money in the account from their spouse if they divorce. They would usually be wrong.
If the account only has funds in it that you earned before you were married, then the money will be your separate property. But if you deposit any of your cash earned while you were married, those funds earned while you were married will be community property and your spouse will be eligible to receive half of those funds.
Assuming that you had funds in the account that you earned prior to your marriage and you commingled those funds with your earnings while you were married, you may be able to take the funds earned before marriage out as separate property. Indeed, in that situation, you will be required to do a complete accounting and trace the separate funds.
It’s costly and time consuming, but depending on the amount at issue, may be the worth the cost.
Myth Number 9: Money earned during marriage is all mine
Many people would be very surprised to learn that the opposite is true. Everything you earn while you are married is not separate property, but rather it is community property and your spouse will be entitled to half when you divorce.
In fact, all of the income you earn through your labor during your marriage will be considered community property. Assuming you work for an employer, any retirement benefits you collect, either your own contributions or your employer, will also be community property, even if you can’t collect the benefit until after you are divorced.
Those retirement benefits could include your 401(k), pension, stock options, restricted stock or any type of benefit you collect while you are working.