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Legal Tips

10 Divorce Myths

Written By
Law Team
April 29th, 2020
Posted in Legal Tips

1. A divorce takes six months.

This is very seldom true.  The reason for this is explained in the Frequently Asked Questions section of this website in response to Question 2: “How long does a divorce take?”

2. Once they are 12, children get to decide where they want to live.

Theoretically, children never get to decide where they want to live.  Only the court has this power.  However, a court is required to consider a child’s wishes if it determines that the child in question has reached a sufficient age to form an intelligent preference.  Trial courts are generally reluctant to talk to children or to let them testify, and, when they do, they are more interested in why a child wants to live with a particular parent than the fact that he or she wants to live there.  Not surprisingly, courts are more likely to want to hear from teenagers than younger children and are more likely to give greater weight to the wishes of teenagers.  A child who is at least 14 years old can request that he or she be allowed to speak to the court.

3. If my spouse or former spouse refuses to let me see our children, I can refuse to pay him or her support.

Under California law, child support and child visitation are completely separate and unrelated issues.  If a father fails to pay support, he is subject to being held in contempt and faces possible incarceration.  The fact that the children’s mother was not allowing him to have his court ordered visitations with the children is legally irrelevant and cannot be used as justification for nonpayment of support.  Conversely, if a mother fails to make the children available to the father for court ordered visitation, she is subject to being held in contempt and faces possible incarceration.  The fact that the children’s father was not paying his court ordered child support is legally irrelevant and cannot be used as justification for the mother’s failing to allow the father to have his court ordered visitations.

4. The court will go along with any written agreement my spouse and I sign.

This sounds stupid–only because it is.  Assume you and your spouse agree on everything, reduce your agreement to writing, sign the agreement, and have it notarized.  Even if you do this, a court will not enforce the agreement unless, prior to signing it, you and your spouse served each other with a Preliminary Declaration of Disclosure on properly completed court forms.  The fact that the information required in your Declaration of Disclosure is already set forth in your agreement is insufficient to constitute compliance with this statutory requirement and is legally irrelevant.  As part of the California Legislature’s never-ending effort to protect you from yourself, neither party can waive the requirement that a Preliminary Declaration of Disclosure must be served.

5. I only have to give my spouse documents he or she (or his or her attorney) specifically requests.

Under California law, each spouse has a fiduciary duty to disclose all of his or her assets and debts to the other spouse, along with supporting documentation, even if no formal request for the information and documentation is made.  In fact, each spouse is statutorily required to give his or her spouse all documents he or she needs to make an informed decision regarding the issues of support and property division.

6. I get one-half of all property held in joint names.

Property held in the joint names of spouses is presumed to be community property.  However, that does necessarily mean that each spouse will get one-half of the property in the event of a subsequent marital dissolution.  For example, to the extent either spouse can prove that the jointly owned property was acquired with his or her separate property, he or she may be able to get back the amount of his or her original separate property contribution before the remaining portion of the property is divided equally between the spouses.

7. I get back the property I owned on the date of marriage, as well as the property I received by gift or inheritance.

This is true if the property you received by gift or inheritance is still in existence.  If the property was sold or liquidated and the proceeds were used to buy another asset, you may get back all or a portion of the proceeds, but only if you have maintained sufficient financial records to trace the proceeds into an existing asset in the marital estate.  If the liquidation proceeds were spent on unsecured debt or living expenses, they are probably lost, and, more than likely, you will not be entitled to reimbursement from the community property estate.

8. Once a judge has ordered my spouse to pay a debt, the creditor can no longer collect the debt from me. 

This is simply not true.  If you signed on a debt or, with your knowledge, a debt was incurred in your name, the creditor can sue you to collect the debt, regardless of what the judgment in the family law case says.  A family law judge cannot prevent the creditor from suing you.  The creditor is not a party to the family law action and is not bound by orders made in the family law proceeding.  By ordering your ex-spouse to pay a debt held in your name, all the family law judge is doing is giving you the right to sue your ex-spouse in the event he or she fails to pay the debt.

9. My spouse will pay my attorney’s fees.

While the spouse who has the greater income is typically required to make a contribution to the attorney’s fees of the lower earning spouse, whether this happens and/or the amount of the contribution depends on a number of factors and the trial court’s considerable discretion with regard to these issues.  Neither spouse should assume that all of his or her attorney’s fees will be paid by the other side.

10. If I don’t like the judge’s decision, I can appeal it.

Appeals are very expensive and generally can only be taken if the trial court made a serious error in the way in which it applied the law.  A party cannot appeal a judge’s decision simply because he or she disagrees with it or because the judge could have ruled a different way.  In most instances, for better or for worse, parties are stuck with decisions made by the trial judge, which is why proper preparation of your case for trial is so important.

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