Top Ten Most Frequent Misconceptions About California Divorce

Top Ten Most Frequent Misconceptions About California Divorce

I will be legally able to remarry six months after my divorce is filed… correct?

In the State of California, marital status cannot terminate for at least six months and one day from the date that the opposing party is actually served with a Petition for Dissolution of Marriage. This period of time is a statutory "cooling off" period. Additionally, simply because the Petition for Dissolution of Marriage was filed and served, does not "automatically" cause marital status to terminate after six months if the case has not been completed.

If the case has been completed in full, and all filing requirements have been achieved in advance of the six month mark, a Judgment of Dissolution of Marriage can be filed and entered prior to the six month date, however, even though the Judgment is filed and entered, marital status will not terminate until that six month elapses from date of service. The Judgment will indicate the date on its face when marital status terminates.

If the case is still in progress at the six month mark, either party may file a motion to "bifurcate" the case to achieve a "Judgment – Marital Status Only" to terminate marital status, while the balance of the issues in the case either settle or proceed to trial as reserved issues. The motion is not "automatically" granted, as many requirements must be met in advance of the motion being granted, some simple, some complex, depending upon the nature of the case. Substantial concerns can occur relative to health insurance, pension and retirement considerations, together with an entire host of other concerns which will be different in each case.

2. I can withhold visitation when child support is not paid… correct?

The answer is unequivocally no, as the right to receive child support payments and the right to exercise visitation/contact are considered as independent legal rights enforceable by a court order. It is the duty of the Court to protect the child's right to have unfettered, consistent and uninterrupted contact with each parent. Accordingly, one may not withhold a child's contact with the other parent as a remedy to deal with unpaid support. There are other remedies and enforcement procedures available for unpaid child support including, but not limited to, contempt proceedings and wage assignments. A party that engages in self-help by withholding contact between the other parent and child, may very well risk violating any in place visitation court orders issued by the judge creating a risk of a contempt action and/or a change of custody to the other parent.

3. Can I reduce my child support obligation if my prior mate remarries?
Unless your prior mate has actively suppressed his or income as a result of remarrying, as a general rule, new mate income is not a factor that will support a request for a reduction in child support, as the new mate has no responsibility for your child's support.

4. Will my child support obligation/payment be increased if I remarry and my mate has income?

Unless you have actively suppressed your income after re-marrying, as a general rule, new mate income is not a factor that will support a request for an increase in child support, as the new mate has no responsibility for your child's support.

5. If my personal expenses increase (a big car payment, a big mortgage payments, etc.) can I seek a child support reduction?

California Superior Courts are mandated to use a child support formula/guideline for child support. Primary factors in determining child support are, as follows: the gross income of each party, times share percentages, dependency/tax deductions, health insurance costs, daycare costs, and other considerations relative to each particular case. Insofar as child support is treated as a primary fiancial obligation, the Court will not take into consideration other life-style expenses and personal spending habits and elections as an excuse to reduce and/or defeat child support obligations. So, electing to have a big car payment will not factor into a Court's child support determination and, a big mortgage can actually increase your support obligation (property tax and mortgage interest are tax deductions, which shelter income from tax, which increase net income, which can in turn increase child support.)

6. How is child custody determined?

Responding in a very simplistic fashion, initial child custody decisions are based on a "best interests" standard, i.e. what is in the best interests of the child(ren). Accordingly, when the parties are unable to formulate a parenting plan on their own, the court will determine what would be in the best interests of the child(ren). Subsequent, post judgment custody determinations may require a "substantial change in circumstances" in determining custody issues.

7. Do I need to be married ten years to get an interest in my mates pension/retirement benefits?

Your length of marriage has absolutely no bearing on the division of community property. There is a rebuttable presumption that all assets acquired during the course of marriage (assets acquired between date of marriage and date of separation) are community property which must be divided equally.

8. My name isn't on his/her credit card so I don't owe any part of that debt… correct?
There is a rebuttable presumption that all debts incurred during the course of the marriage are community debts that will be equally divided by and between the parties and/or go onto the marital balance sheet. Accordingly, if the debt was incurred during marriage, it does not matter (within reason) what was purchased or which party's name is listed on the charge card.

9. The party that moves is the party that provides for and pays the costs of transportation, correct?

Each case is different in terms of facts, distances moved, and finances. As a general rule, where the parties remain reasonably local to each other, the parties will be required to equally share in the actual transportation to the extent that they will meet half way for pick-ups and drop-offs, or the receiving party will provide the transportation. When train and/or air fare comes into play as the parties are no longer reasonably local to each other, the duty to pay for the cost of travel will most likely be determined by the relative incomes of the parties. If the parents have relatively equal incomes, transportation cost will usually be shared. Where a substantial disparity in income exists between the parties, the court may deem it necessary to apportion the travel costs between the parents. Accordingly, no "fault" will be attributed to the moving party as a general rule.

10. I don't like the ruling, so we can appeal, right?

Either party may appeal any legal ruling, assuming that the Court made a legally incorrect decision. However, there is a substantial difference between a legally incorrect decision, and that fact that you simply disagree with the ruling of a judicial officer. The burden of the appealing party is to convince a higher court to review a lower court's ruling based upon an appealable error justifying a reversal in whole or in apart. Appellate law is technical, frequently costly, and can often take a very long time in terms of when the matter is reviewed and ruled upon. A family law expert in appeals should be consulted prior to making any such decision.

Categories: Divorce

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