The Top 10 Most Damaging Misconceptions About California Family Law

Legal misconceptions run rife, often fueled by idle chatter, mistaken assumptions, or outright misinformation. And while some legal misconceptions are more or less harmless (e.g., you can’t be ticketed for speeding if you’re going with the flow of traffic), others are much more harmful. In the family law context, misconceptions can be particularly harmful, with both personal and financial ramifications. Here, our Stockton family law attorneys clear up some of the most common and potentially damaging misconceptions about California family law. 

1. Everything Is Divided 50/50 in Divorce 

California is a community property jurisdiction, which means that community property is divided 50/50 upon divorce. However, not all property is community property. Generally, community property refers to property a spouse acquires during the marriage, while separate property is property a spouse owned before the marriage, received via gift or inheritance, or agreed upon with the other spouse to be separate. California couples can also circumvent the default rule through prenuptial agreements. 

2. Mothers Always Get Custody 

While mothers may have been favored in child custody proceedings at one time, that is no longer the case. Instead, California family law courts determine custody based on the best interest of the child, and they are forbidden from considering a parent’s sex when making such determinations. Unfortunately, the persistence of this myth discourages many fathers from asserting their parental rights. For more information about how courts determine child custody, please speak to a Stockton family law attorney. 

3. I’ll Have to Pay Alimony After Divorce 

A common reason why spouses stay in unhappy marriages is that they assume that they will have to pay alimony upon divorce. In reality, alimony is not a certainty. California family law courts consider many factors when deciding whether to order alimony, and they are most likely to do so when one spouse’s earning capacity has been impaired by the marriage. It’s much less likely in marriages where both spouses could be self-sufficient upon divorce. 

4. Infidelity Affects Divorce Settlements

California is a no-fault divorce jurisdiction, meaning that neither spouse must allege wrongdoing by the other spouse as “grounds” for divorce. As such, infidelity generally has no bearing on divorce-related matters, including alimony and property division.  

5. Child Support Is Whatever the Parents Agree On

As with child custody, California family law courts determine child support based on the best interest of the child. They do so using complex mathematical guidelines that take into account each parent’s income, the time the child spends with each parent, the number of children, and other relevant factors. Judges may deviate from those guidelines — such as by approving a parental agreement to a specific amount of child support — but only if doing so would meet the child’s needs, and it can be shown that neither parent was coerced. So while it’s theoretically possible for the parents to set child support, it’s unlikely.  

6. Not Working Means No Child Support 

This is not an unreasonable assumption. As they say, you can’t get blood from a turnip. But that old adage has no purchase in family law. California family law courts calculate child support based on a parent’s earning capacity if that parent is found to be voluntarily unemployed or underemployed. This is known as imputation of income, and it can come as a nasty shock to parents who attempt to evade their child support obligations. 

7. I Can Withhold Visitation if the Other Parent Doesn’t Pay Child Support

This is a major misconception that can have serious consequences for those laboring under it. Visitation and child support are separate legal issues, and it is unlawful to deny visitation because of missed child support payments. Visitation and custody orders carry the force of law, and breaching them can expose the violator to both civil and criminal penalties, including potential jail time. If you’re dealing with denial of visitation or non-payment of child support, a Stockton family law attorney can assist you. 

8. Court Orders Are Final 

Not everything in law is final — including family law matters like alimony, child custody, and child support. The law recognizes that circumstances change and that post-divorce modifications may be in the best interests of all involved, particularly when children are involved. The grounds for obtaining a modification of a court order vary, but generally require the requesting party to show a significant change in circumstances and that the modification would be in the best interests of the child (if applicable). 

9. You Can Get a Common Law Marriage if You Live Together for Seven Years

There is no such thing as a common law marriage, at least in California. For a marriage to be valid in California, it must comply with the requirements of California Family Code § 300, which makes no provision for marriages based solely on long-term cohabitation. However, California recognizes valid common-law marriages established in other states.   

10. Your Spouse Can’t Touch What They Can’t Find 

Like attempting to evade child support obligations through unemployment, hiding assets to shield them from property division may seem to work in theory, but it is far outweighed by its risks. California Family Code § 2100 requires a full and accurate disclosure of all assets and liabilities prior to divorce. Attempting to circumvent that duty — such as by transferring assets to third parties, storing funds in offshore accounts, or creating fake expenses — can expose the offending spouse to severe penalties, including an award of up to 100% of the hidden asset’s value to the non-offending spouse. 

Make the Right Choices — Work With a Stockton Family Law Attorney 

Handling a family law matter by yourself increases the risk that you will make costly and damaging mistakes. You can avoid that risk by working with an experienced attorney who can give you the correct advice and help you make the best decisions. For more information, please contact a Stockton family law attorney at McKinley, Conger, Jolley & Galarneau by using our online form or calling us at 209-477-8171.