Thanks to its inscrutability, the field of law is subject to a large number of myths and legends created from partial understandings, second-hand accounts, and exaggerated depictions in media. Much like our ancestors created beasts and dragons to explain the unknown terrors of the night, we create myths to help us wrap our minds around a thick lawbook we don’t understand.
Unfortunately, the false beliefs that emerge from this misinformation can cause harm that’s all too real. To help you make informed decisions, we’ve created a list of some of the most common myths we’ve run into during our years practicing law and the truth behind them.
Myth #1 – Your divorce must happen in the state in which you were married.
This is false – your divorce must happen in the state in which you are currently a resident. This is what gives the court jurisdiction to hear your case.
Myth #2 – I’m entitled to my marital standard of living.
This is one of the most common and enduring myths that we come across in our practice. Think about this logically – you have one household that has a set income from either one or two sources that you have lived off of as a marital community. If you split that in half, it would be virtually impossible for you to maintain the exact same standard of living you enjoyed while a part of the marriage.
This myth probably originates from the court’s goal of relatively equalizing the living standards for both parties after a divorce. In other words, one person should not be living in a beautiful mansion while the other lives in a squalid studio apartment. This leveling of the playing field should not be mistaken for ensuring that you both get mansions, just that you have reasonably equal living standards after the split.
Myth #3 – Divorces are finalized six months after they are filed.
This is a common misinterpretation of a widely known filing requirement. Most people believe that filing your petition alone is enough to begin the 6-month clock that signals the finalization of the divorce under the California Family Code. In reality, that 6-month clock only starts once the respondent – the other party in the marriage – is successfully served with the divorce summons and petition.
This is due to the need for a fair trial. For proceedings to go through, the other party needs to be put on notice so they have the time to prepare themselves and defend their interests in court if need be. This notice is court-recognized as being “served” with the divorce papers.
To carry that thought a little bit further, the only way your divorce is going to become finalized after six months is if you’ve completed the entire process – including the court case – within that time period. The divorce is not legally finalized until the court has a signed agreement in hand, whether or not those proceedings have been completed within the six-month timeframe. Running cases that last well past the 6-month marker are more common when litigating your divorce.
Myth #4 – Wedding rings and engagement rings are divided as part of the marital assets in a divorce
False – wedding rings and engagement rings are actually considered gifts to the community or gifts to the person who received them. Any gifts or inheritance that are received during the life of a marriage are considered separate property so they are not typically a part of the division of community assets in a divorce proceeding.
Myth #5 – Courts will favor mothers in custody battles
This is another very popular myth that’s been repeated ad nauseam in online forums and in the media for many years. Courts do NOT factor in the sex of the parent when considering custody arrangements. The only factor that plays a part in deciding these arrangements is what is in the child or children’s best interest.
Myth #6 – If child custody is split 50/50, no child support is paid
Although this could happen, the definitive ‘if, then’ statement makes this myth false. While it does play a role, child support is not solely based on the percentage of time that you have custody of your children. Child support covers food, shelter, and clothing for the children produced by a marriage and is based on a number of factors, the biggest of which is your income.
To provide an example, let’s say one parent’s income is $100,000 and the other’s is $40,000. When those parents divorce, the court assigns a 50/50 custody arrangement so that both parents spend an equal time being responsible for their child or children. Because the disparity in income is so substantial, the court will likely assign child support payments to the higher-income parent to equalize the disparity and create more continuity and consistency for the children’s home environments.
Myth #7 – Spousal support (or alimony) is ordered for half of the life of the marriage
This is yet another partially true myth. If you are dissolving a marriage that is not considered ‘long term’ in the state of California (married for less than ten years), the rule of thumb is that you could be potentially eligible to receive spousal support for half the life of the marriage. That doesn’t mean that there aren’t going to be mitigating circumstances that a court can look at in addition to that.
If you are considered to be a long-term marriage then you can potentially have spousal support ordered for a much longer period of time – in some instances even continuing indefinitely until death or remarriage of the recipient party. To determine an appropriate length of time that the responsible party will need to support their ex-spouse, the court has jurisdiction to look at mitigating circumstances surrounding that spouse’s ability to earn their own income, including
- their educational level,
- how long they’ve been out of the workplace,
- if they have any disability that would prevent them from either working part-time or full-time,
- Any other circumstances that would affect their ability to make a living.
Myth #8 – I can discharge my spousal support and/or my child support if a file for bankruptcy
Alimony and child support are not included in the financial obligations that can be discharged when filing for bankruptcy.