While everyone seems to know someone who has been divorced or who is going through a divorce, misconceptions and misunderstandings about divorce are still all too common. California has its own laws on divorces, so you need to talk to a California family law attorney if you need advice about your specific case. Taking advice from someone who isn’t an experienced family law attorney is risky, especially considering all the bad information and myths that are circling around.
Myth 1: You can’t get divorced in California unless your spouse agrees to it.
While this is not as widely held a belief today as it may have been a few years ago, it is not in any way true. A divorce or dissolution of marriage if you will is a lawsuit. Like other lawsuits, such as you suing a person for damages after a car accident or because of a breach of contract, you do not need the other person’s permission to file for a divorce. In some religions, both spouses must agree to the divorce, but this has no effect on the legal institution of marriage. As it exists today in California, either spouse can seek a divorce with or without the consent or agreement of the other. There may be disagreements as to the terms of the divorce and if the spouses cannot agree to terms, the court ends up makes the decision for them.
Myth 2: I’m going to be punished because I cheated.
This is a myth left over from the days of what used to be known as “fault” divorces when people could only get divorce because their spouse did something wrong. Today, California allows people to get divorced without having to claim their spouse did something wrong. The details of this so-called “no fault” divorce in California is such that any married person can ask a California court for a divorce without having to prove, or even allege, that their spouse did something to cause the divorce. However, while not taken into consideration for spousal support or alimony, California courts may still consider fault grounds when deciding issues as they relate to your children.
Myth 3: You can’t get divorced in California until you get a separation.
Outside of California, this myth may be partially true. In some situations and limited circumstances in some states, you do have to go through a legal separation period before the court can grant a divorce request. You do not need to be physically or legally separated before you can get a divorce in California. Further, the definition of separation can vary by state. California is a state that recognizes a legal separation. In California the court can award spousal support, child custody and property settlements just like a divorce but without ending the marriage. These are just the basics as there are items such as residency requirements and more that come into play.
Myth 4: I’m a woman/man, so I will/won’t get custody of my child.
Child custody issues are some of the most emotional parts of any divorce in California. Though the courts used to give child custody preferences to mothers, this is no longer the case. The court’s goal in deciding child custody issues is to ensure the best interests of the children. Courts usually prefer if parents come to their own agreement and child custody arrangements, and give parents broad discretion in deciding what is best for their children. However, if parents cannot come to an agreement, the court looks at factors that influence the child’s health and well being. The courts can impose any custody order as long as it is in the child’s best interests, even if the parents do not ask for it or agree to it.
Myth 5: Common law spouses need to get an official divorce to stop being married.
While there still are a handful of States that recognize Common Law Marriages; ie: a marriage that is without official recognition by the state, California is not one of them. By definition, without Common Law Marriage, there can be no Common Law Divorce in California. This distinction applies no matter if you have been living together for a few months, or for many years. There have however been instances in California where implied agreements between unmarried persons regarding their properties have been upheld by California courts. These non-marital relationship contracts had developed the nickname: “Palimony” (alimony for a pal) and is probably best remembered by the case of Marvin v. Marvin.