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Fact vs. Fiction

Pre-Divorce Considerations

Fiction: "I will be divorced in 6 months."

Fact: The termination of your marriage is not automatic. A Judgment of Dissolution must be filed before you are considered divorced. If your case takes longer than six months to complete, you may file a motion requesting the court to terminate the status of your marriage. However, prior to granting your motion, the court may ask you to comply with certain conditions to protect your spouse from the effects of the termination of status pending the entry of the final judgment. Be sure to speak with your attorney about these conditions, before you request a bifurcation of the status of marriage..


Child Custody

Fiction: "Moms always get custody of the kids."

Fact: There is no statute or case law that automatically provides that a Mom will have primary care of the children in a divorce situation. The courts will look to see who has been providing care for the children, while attempting to allow both parents to be involved with the ongoing care of their children. While it is true that Moms are the primary caretaker in many traditional families, there are just as many Dads who share equal parenting duties. In fact, there are quite a few Dads today who are the primary caretakers. The court will lean towards stability for the children and examine the current situation in the family. It is important for a father seeking shared custody to be actively involved with the children early on.

Fiction: "I will take the children because Mom can't afford to care for them."

Fact: This is a bad tactic - and not a very effective one. The person with the money is not the issue. The court will determine what is in the best interest of the children and will then order child support from the parent with greater earnings. Sometimes women believe these types of statements regarding money and agree to a settlement that is shortsighted. Some may even give up on gaining primary custody.

Another mistake sometimes made by divorcing parents is leaving the children behind, intending to return to gain custody later when a better home is established. Unfortunately, once the parent leaves, his or her bargaining position is greatly diminished. It is critical to establish a pattern of being a major participant in parenting the children.

Fiction: "When my children are older they will be able to determine where they want to live."

Fact: This is a very common misperception and is also very wrong. The age at which a child can determine where he or she wants to live is 18, i.e., when he or she is no longer considered a child. I hear many people speak with great authority about a magic age when children can decide. Even some lawyers believe this is true. Some insist it is 14, others say 16, and some don't know what the age is but are certain there is such a law. There is not.

There are situations where a representative is appointed to represent the children and perhaps this representative (Guardian ad Litem) will give some weight to the children's preferences; ultimately, the GAL makes a recommendation based upon the best interests of the children.


Child Support

Fiction: "If I have 50/50 custody, I will not have to pay child support."

Fact: There is a complex formula that is used to determine the amount of child support a parent may be ordered to pay. The formula consists of many factors, however, the two main factors considered in setting child support are: the income of each parent and the percentage of time each parent spends with the child. So, while the percentage of time a parent has with the child will affect the amount of child support, it does not mean a support order will not be made.


Spousal Support

Fiction: "If my marriage was 10 years or longer, I will pay support forever."

Fact: This is another common misperception among spouses. The court has broad discretion to consider any factors that are just and equitable in setting the amount and duration of spousal support. The length of the marriage is one factor among many the court will look at. Some of the other factors the court will examine include, the needs of the parties, the supporting spouse’s ability to pay, the earning capacity of each party, any history of domestic violence, the marital standard of living, and the goal that the supported party become self-supporting within a reasonable period of time.

In marriages that do not last 10 years, a reasonable amount of time for the supported spouse to become self supporting is generally one-half the length of the marriage. The caveat is that the court can order support for a greater or lesser length of time, depending upon all of the other factors considered. Talk to your attorney about all of the conditions and how they apply to your case.


Property Division / Business Valuation

Fiction: "If we get divorced, I will have to sell my house."

Fact: The court is not required to sell your house at the time of trial. There are several creative options available to you, with the consent of your spouse or by order of court. The need for stability for your children and the current market conditions will typically dictate how a court will rule, but there is always room for negotiation on such issues. If the market is low, it may make sense for parties to keep the house until the market increases. If the market is high, it may make sense to sell the house and make use of the tax advantages of a primary residence. Working with your attorney and an accountant is critical to determining the best options which are available to you.

Fiction: "If my name is not on title, I do not get anything."

Fact: Generally, all assets acquired during the marriage are considered community property, and should be divided equally upon divorce. Separate property items are those that a spouse obtains before or after the marriage, by gift, or by inheritance.

Often times couples only put 1 spouse’s name on title to their residence at the lender’s request, without realizing the effect. If only 1 spouse’s name is on title, the residence will be presumed to be that spouse’s separate property. This is true even if the parties use community funds for the down payment and mortgage payments. The spouse whose name is not on title will have the difficult burden of showing the residence is actually community property, if he or she wants the equity of the residence to be divided equally. This usually means the spouse will have to show there was some fraud or undue influence. However, if the spouse who is not on title cannot rebut the presumption, he or she can still seek reimbursement for the community funds used to make the down payment and mortgage payments.


Domestic Violence / Restraining Orders

Fiction: "If I am accused of domestic violence, I cannot get joint custody."

Fact: Accusations of domestic violence are taken very serious in family law courts. Ensuring the safety and well-being of the child is of the utmost importance. However, until a person is found to have actually perpetrated domestic violence, there is no presumption against joint custody.

If the parent is found to have perpetrated domestic violence in the last five years, it will be very difficult for that parent to obtain joint custody, as the law presumes that the parent is unfit to have sole or joint custody.


Paternity

Fiction: "I am not the biological parent; therefore, I cannot be awarded custody."

Fact: Although it is less common, sometimes grandparents, relatives, and friends petition for custody of the child. In order for the court to place a child in the custody of a non-parent (as opposed to a parent), the non-parent will have to show that granting custody to the parent would be detrimental to the child and that placing the child with the non-parent will serve the child’s best interests.

Fiction: "I am not the biological parent; therefore, I do not have to pay support."

Fact: The court only has jurisdiction to order a parent to pay child support. As discussed above, even though a man may not be the biological father of the child, he may be considered the father under California law. Once parentage is established, the court has authority to order a parent to pay child support.


Pre-Nuptial, Post-Nuptial and Cohabitation Agreements

Fiction: "Pre-nuptial agreements are only for wealthy people."

Fact: You may not be rich, but you definitely want to have a successful marriage. Having those honest discussions regarding how the two of you will approach finances will ensure that there won't be any surprises once you are married. You never want to actually need to enforce the premarital agreement, right? Talking about these financial issues, in advance, will help insure that you handle your finances with minimal conflict during your marriage as well as in the case of divorce.

Example: You may become rich in the future. Your education or ideas and talents may one day become more valuable than they are today. You need to think about how you'd want to handle the sale of a book, screenplay, or song; you may also need to think about how you'd handle the division of a business in the event of a divorce.

Example: Second and third marriages can often bring conflict between children from prior relationships and new spouses. Clear discussions about finances in a divorce or premature death situation help everyone avoid conflict later.

Fiction: "If we don't get married, they won't have any claims to my income or property."

Fact: If you have an oral or written discussion about how you will own property, share income, assets, debts, and so forth, it is possible to make a claim that contract law applies (as opposed to family law) and that property should be divided even if it's only in one person's name, or only one person paid the bills. There are also real estate partition laws that can dictate how property is divided, and in some cases you can even force an involuntary sale at auction.

If you are going to live together without getting married, you'll want a cohabitation agreement. It's better to decide who contributes to and owns property before you buy things rather than afterwards.


Fiction: "My will is private."

Fact: A will, when it is probated, becomes public knowledge, as do the assets listed under the will. A living trust, unless there are extraordinary circumstances, never becomes public; thus, neither the assets nor terms of the trust become public record. The following is a list of famous public figures with public wills: Warren Burger (former Chief Justice of the U.S. Supreme Court), Joe DiMaggio, Jerry Garcia, John F. Kennedy, John Lennon, Linda McCartney, Marilyn Monroe, and Richard M. Nixon.

Fiction: "I have a will, so probate is not necessary."

Fact: In order to be enforced, a will must go through a form of probate procedure in the court system for which there are fees, usually based on the size of the estate and possibly on the identification of the beneficiaries if they are minors (since guardians may have to be appointed; however, see below). Beneficiaries normally cannot receive the bulk of the assets until probate is completed, which could take a year or more. With a living trust, probate is avoided, and trust assets are distributed almost immediately by the trustee to the beneficiary.

Fiction: "I do not need a trust, because I do not have very many assets."

Fact: A living trust is more than just a distribution of assets. It is a way to put your affairs in order and to prevent frustration for your friends and family. Typically, a living trust is combined with a Durable Power of Attorney form and an Advanced Health Care Directive. Together, these forms indicate your intent if you are unable to convey your wishes due to an accident or rapidly decaying health. This is also an opportunity for parents to designate a guardian for their children. Talk to your attorney about your wishes and make sure that they are included in your estate plan.

Office Location

Robert Gantman, Certified Family Law Specialist, State Bar of California Board of Legal Specialization
| 15760 Ventura Boulevard | Suite 1520 | Encino, CA 91436-3026 | Toll Free: 818-501-0113
Fax: 818-501-7466 | Map and Directions