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

By | May 3, 2012

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. To make the information easy to digest, the article is broken into three parts:

1.  I can get remarried 6 months after I file for divorce.
Just filing your divorce petition does not permit you to marry after 6 months. You must get a court to issue a judgment that terminates your marital status. The earliest you can terminate your marriage and be returned to the status of a single person  is  6 months from the date a filed divorce  petition  was served on the other spouse and no sooner.

2.  If s/he withholds support, can’t I retaliate by withholding visitation, and vice versa?
The right to receive  child support payments is an independent legal right enforceable by a court order. The court will always protect the child’s right to have a consistent and uninterrupted relationship with both parents. You cannot withhold a child’s contact with the other parent as a remedy to deal with unpaid support. If support is not being paid, go back to court to get help from the judge on collecting the unpaid support. By withholding contact between a parent and child, you risk violating any visitation court orders issued by the judge and risk a contempt motion as well as a change of custody to the other parent.

3.  If she marries a high earner, my child support payments should go down.
The income of a new spouse or partner of a parent obligated to pay support cannot be used as a factor to reduce child support.

4.  If I marry a high earner, isn’t it true that my child support payments will go up?
The same answer as above applies here. The income of a new spouse or partner of a parent obligated to pay support cannot be used as a factor to reduce or influence child support.

5.  If I buy a house with a fat mortgage, I can’t afford child support, so it should go down.
Back in 1984, the California courts adopted a guideline for child support that we follow to this day. The three factors that influence child support are: gross incomes of the parents, percentage of parenting time share and ( as a distant third) dependency exemptions/tax filing status. The courts treat child support as a first in line creditor and other bills like a real estate mortgage do not weigh in. The tax advantage of having a home mortgage with a large tax deductible  interest payment may act as an element that could actually increase child support!

6. Isn’t  child  custody  about fairness?
Child custody is based on what is in the  best interests of the child. If  parents cannot agree on a parenting plan, the court must step in and determine what arrangement would be the best emotional and physical arrangement for the child(ren). The judge’s decision will never be as good as the arrangements parents work out with one another.

7.  You have to be married 10 years to get a part of your ex-spouse’s pension rights.
Any earnings acquired from date of marriage to date of separation is considered community property. These monies used to acquire retirement benefits, pensions, profit sharing, stocks etc…will be community.  The length of marriage has no bearing on your right to the community property acquired from date of marriage to date of separation.

8.  If my name is not on the credit card,  isn’t it true that I don’t owe this debt incurred during marriage?
Under the law, a marriage is like a business partnership. You can ultimately be held accountable for the debts  either spouse incurred during the marriage. This legal rule protects creditors from a spouse claiming that the debt acquired during the marriage  belongs to the other person. If the debt was incurred while married, it does not matter whose name is listed on the charge card.

9.   S/he is the one who moved, so s/he should have to pay the kids’ travel costs.
The duty to pay for the cost of travel, like the duty to pay child support, is typically driven by the incomes of the parties. If the parents are considered equally matched on relative incomes, the court usually will expect the parents to equally share domestic transportation costs. If there is a disparity of income between the parents, then the court has the power to apportion the travel costs between the parents.

10.  If I don’t like the judge’s decision, can’t I  always appeal?
You have a right to appeal a legally wrong decision. You don’t have a right to appeal a decision simply because you did not like the judge’s decision. A determination must be made if there actually is an issue that would justify a higher court reviewing a lower court decision. If the trial judge made an appealable error concerning how the law was applied, the judge could be reversed on appeal. However, appellate law is very technical and really requires an experienced family law appellate attorney to determine if there is any merit to an appeal.

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.

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