Divorce Myths: Top 30 Misunderstood California Family Law Principles (Part Two)

In reviewing readers’ posts on Lawguru.com, I frequently come across questions and comments that reveal misconceptions about California family law legal principles.

In an effort to set the record straight on how the state’s family law legal system works, I’ve compiled a list of the top 30 family law myths that I’ve encountered, along with responses I have formulated to dispel these common misconceptions. This is Part Two of the three part series.

1.  I should not have to pay my lawyer for the time spent on the phone with my unrepresented spouse.

Lawyers bill for their time for any and all transactions related to your case. They cannot neglect responding either to opposing counsel or to a party who is self represented. All attorneys in California  must have a written retainer agreement with their client if they anticipate or know that the fees or the  retainer will be greater than $ 1,000.00.

2.  Can’t children make custody decisions at age 12?

California recently enacted a new family law provision allowing children 14 years or older to express their parenting and timeshare desires to the court. This provision is not absolute however. If the judge feels it’s in the child’s best interest not to participate in this manner, the court can preclude the child from direct involvement with the court. This election to not hear directly from the child does not mean that the court cannot weigh all the information provided to it by child counselors, therapists and family court services mediators.

3.  Child support stops when the child is 18.

Child support ceases by operation of law if the child dies, becomes emancipated, is 18 years old and not still in high school full time, or up to the age of 19 if still in high school.

4.  Doesn’t the court  make the other parent chip in for the kids’ college?

In unique cases where you have a gifted child and the child has advanced to college while under the age of 18, the court would continue to order child support. There is no right to order a payer parent to pay for college.

5.  If we’re married more than 10 years, my spouse has to pay for me to get a college education.

The family law establishes that a marriage of 10 years or more should be considered a long term marriage for the purposes of determining the length of time a spouse may be entitled to support. There is no rule requiring a spouse to pay for education expenses of the other spouse simply because the duration of the marriage was more than 10 years.

However, in cases where there is a high earning payer spouse, the court may consider, as part of a spousal support order, an order that includes paying for vocational training or tuition. The benefit to both parties from this order is that the lesser earner spouse is being retrained to become more economically self sufficient. This retraining can result in less support.

6.  If I quit my job,  isn’t it true that I  won’t have to pay support?

If you voluntarily quit your job in an effort to evade paying child or spousal support, the court can impute earnings to you  based on your prior employment. If you lose your job or suffer a layoff due circumstances beyond your control, then you should immediately file a motion for a downward reduction in support.

7.  If we have equal custody, there shouldn’t be any child support.

Even in parenting timeshares that are roughly equal, child support can be ordered by the court. The two elements that have the biggest impact on child support are gross incomes of the parties and actual timeshare of the child. If the incomes of the parents are not almost equally matched, there will be some kind of child support exposure for the greater earner.

8.   I have a license for marijuana so why should that be a custody factor?

Federal law still considers cultivation and use of marijuana as being illegal. Even though California and other states  passed laws allowing personal use, this state level approach does not translate into protected conduct when it comes to an issue affecting parenting your child. Until marijuana is treated as a legal but controlled substance at both the federal and state level, most family law judges will prohibit or limit custody contact with a child if you insist on continued marijuana use.

9.  My parents used the belt on me so I should be able to hit my kids to discipline them.

The family law courts are evolving towards a zero tolerance position concerning physical or corporal punishment. Results from numerous studies spanning more than two decades strongly suggest that the use of physical punishment can cause significant and permanent emotional damage to the punished child. Some studies even suggest that a child witnessing a sibling being punished in this manner may also suffer from emotional problems and post traumatic stress.

10.  Isn’t Facebook a safe place to post whatever you want about your ex?

A very wise person once said, do not reduce anything to writing you would not want the whole world to see. In the expanding universe of social networking, this rule remains golden.  Saying derogatory things that can be accessed by family, friends, and your Internet savvy children on Facebook or other social network pages can end up being used against you in a high conflict child custody case, or as justification to get personal conduct restraining orders.

 

Arlene Kock, CEO of the Law Offices of Arlene D. Kock has over 30 years experience in handling difficult child custody and family law matters. Proficient in practicing in all Northern California Jurisdictions, Ms. Kock’s office is located in San Ramon CA and you may visit her website at http://www.sanramonchildcustodyattorneys.com/.  Ms. Kock is also a member of the LawGuru Attorney Network.