Legally Speaking

By Tana Landau, Esq.

Going through a divorce can be an incredibly stressful situation for anyone. Many marriages fail for a number of different reasons, and the divorce process can be made more difficult when you or your spouse have misconceptions about how the process works or the outcomes you can expect. Several of the most common misconceptions people have regarding divorce in California are addressed below.

Misconception #1: It will only take 6 months for the divorce to be final.

Six months is the minimum amount of time required to pass before a couple can obtain a divorce. The time runs from the date the other spouse is served with the Petition for Dissolution of Marriage, not the date the action is commenced by filing the Petition. The other party must be served for the Court to have jurisdiction.

However, the time it takes to actually get divorced often exceeds the six-month period. This is particularly true if there are issues that require litigation in Court. The more contentious a case, the longer it will take to obtain a final divorce judgment. If both parties are amicable and capable of negotiating an agreement, it is possible to obtain a divorce within six months, although this is not common.

Misconception #2: Adultery by one party will affect the outcome of the divorce.

California is a no-fault based divorce state. There are two grounds to file for divorce in California: irreconcilable differences or permanent legal incapacity. Infidelity is irrelevant in California courts as to the ground for divorce.

However, there is one circumstance where adultery by one party may be relevant to divorce. If the cheating spouse used community funds to pay for gifts or trips, then the money they spent could be deducted from their share of the community property during the division/distribution process.

Misconception #3: A divorce can only go forward if the other spouse agrees.

Your spouse cannot prevent a divorce from going forward by rejecting or denying it. They cannot force you to remain married. You can move forward with a divorce whether they agree or not. If your spouse chooses not to file a response, you can proceed by “default” to obtain a judgement without their active participation.

Misconception #4: The mother will always get primary custody in California, or the mother is favored for custody decisions.

California encourages both parents to be actively involved in their children’s lives and prefers joint custody when possible. In California, child custody is determined based on what is in the children’s best interest. California laws do not inherently favor either spouse unless one is unfit or poses a risk to the child. The Courts consider a number of factors in determining what is in the best interest of the child which can include the relationship of the child with each parent, the living accommodations of each parent, any occurrence of domestic violence or substance abuse by either parent, any special needs of the child, and where the child attends school, among other factors. While the parent who has been the primary caregiver, whether it has been the mother or the father, is a factor considered as to the best interest of the children, it is not the deciding factor alone.

Misconception #5: The wife will always get spousal support in a divorce and the husband never can.

Spousal support is not awarded in every divorce. Generally, spousal support is awarded where there is a significant disparity in the parties’ current incomes or earning capacity. In determining if spousal support is necessary and reasonable, the Court will look at a number of factors including, but not limited to, how long the parties were married, the incomes of both parties and ability to pay, the earning capacity of both parties (education and work history), the age and health of both parties, and the ability of each party to maintain the marital standard of living (financial needs of the parties). Either spouse can potentially receive an award of spousal support. The analysis goes both ways and is not limited to only a wife/ woman receiving an award of spousal support. If the husband is the lower income earning spouse or has the lower earning capacity, it is possible for the husband to obtain a spousal support award.

There are a lot of other myths and misconceptions about divorce in California, and many people will make assumptions based upon erroneous information that they have found on the internet or been told by other people. The best way to ensure you don’t get misled is to hire an experienced family law attorney.

For more information about misconceptions about divorce, check out our website: www.frfamilylaw.com or call (858) 720-8250 and ask to speak with military family law attorney Tana Landau.

This article is intended only for informational purposes and should not be taken as legal advice.