Fact vs. Fiction in California Divorce Cases
Divorce is unfortunately common. As a result, almost everyone knows someone who has been divorced and has heard their fair share of horror stories. Divorce is also frequently used (usually unrealistically) as a plot element in movies and television. These factors have led to the rise of a variety of misconceptions about divorce and issues related to divorce. Those misconceptions may then discourage couples from pursuing a divorce when divorce is the best option for them. To cut through the misconceptions and rumors, your best option is to get the real story straight from a Stockton divorce attorney.
Fiction: Your Spouse Must Agree to the Divorce
Fact: No spouse can prevent a divorce, and the state cannot force couples to stay married against one spouse’s will. This misconception likely arises from the era before no-fault divorce laws, in which one spouse had to prove fault against the other spouse if the other spouse would not agree to a divorce voluntarily. California is a no-fault divorce jurisdiction, meaning that neither spouse has to prove that the other engaged in wrongdoing. Instead, the default grounds for divorce are “irreconcilable differences.” If the non-filing spouse refuses to respond to a divorce petition, the filing spouse can request a default divorce.
Fiction: The Ex-Spouse Gets Half of Everything
Fact: Community property (which is not “everything”) is split evenly between the spouses, but spouses can modify that rule through a prenuptial agreement. California is a community property state, which means that property acquired during the marriage is presumed to be owned by both spouses equally. Community property is property acquired by either spouse during the marriage; it does not include any property owned by either spouse before or after the marriage or any property inherited by or gifted to either spouse during the marriage. As such, a spouse is not automatically entitled to half the other spouse’s entire net worth upon divorce, as is commonly assumed.
Fiction: Wives Automatically Get Alimony in Divorce
Fact: No one automatically gets alimony in a divorce; courts take a variety of factors into consideration when determining whether to award alimony to either spouse (regardless of gender). Alimony may be awarded (keyword: may) when the marriage was long and/or one spouse earns significantly more than another. Courts generally look at the length of the marriage, the standard of living during the marriage, the earning capacity of each spouse, each spouse’s need or ability to pay, and whether there was a history of divorce during the marriage. In some cases, no alimony may be awarded if each spouse is capable of supporting themselves on their own.
Fiction: Child Custody Determinations Favor the Mother
Fact: There is a presumption that joint custody is in the best interests of children where the parents have agreed to it, and courts are barred from considering the sex or gender of either parent in custody proceedings. This is one of the most pervasive and widespread myths concerning divorce. Child custody determinations are based on consideration of myriad factors related to the best interest of the child, including (among others:
- The health, safety, and welfare of the child
- A history of domestic violence by one parent against the child or the other parent
- The nature and amount of contact with both parents
- Habitual or continual use of controlled substances or abuse thereof by either parent
California law also declares that “it is the public policy of this state to ensure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage…except when the contact would not be in the best interests of the child.”
Fiction: Infidelity Will Count Against You in Divorce
Fact: As a no-fault jurisdiction, infidelity in California has no effect on divorce, child custody, or property division outside of a few extremely narrow circumstances. While infidelity is the impetus behind many divorces, it generally has no effect on the divorce proceedings themselves or any related issues like child custody or property division. California’s no-fault divorce scheme dispenses with fault and its legal consequences, including infidelity. In rare cases, infidelity may affect spousal support decisions if it can be shown that one spouse’s infidelity led to financial hardship for the other spouse.
Fiction: If You Signed a Prenuptial Agreement, You’re Out of Luck
Fact: No contract is bulletproof, including prenuptial agreements; there are several grounds on which a spouse may contest a prenup. Those include:
- Unconscionability: While prenups generally are enforced according to their terms, courts may refuse to enforce prenups if they are unconscionable. An unconscionable contract is one that is so unfair or abusive to one party as to suggest abuse during its formation.
- Duress or coercion: Prenups, like all contracts, must be entered into voluntarily; a prenup will not be enforced if the party against whom it is sought to be enforced can show that they entered into it under duress or coercion.
- Lack of counsel: California law does not require that both parties to a prenup be represented by independent counsel. However, the non-represented party must sign a written statement that they were advised to hire counsel and chose not to.
For more information on challenging prenups, please contact a Stockton divorce attorney.
Fiction: You Can Withhold Visitation If Your Ex Doesn’t Pay Child Support
Fact: You cannot withhold visitation under any circumstances other than those that would put the child in immediate danger of physical harm. Child support is not payment for visitation rights. Violating a court-ordered visitation agreement can result in contempt of court, fines, and jail time and may even be considered kidnapping in extreme cases.
Contact a Stockton Divorce Attorney to Further Separate Fact From Fiction
There is a lot of bad information about divorce and its related issues out there. If you are considering a divorce, do not believe everything you hear. Instead, seek the counsel of an experienced attorney who can evaluate your case and make a recommendation based on facts, not fiction. For more information, please contact a Stockton divorce attorney at McKinley, Conger, Jolley & Galarneau by using our online form or calling us at 209-477-8171.