Santa Rosa Family Lawyer Blog

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.

In an earlier post titled Living in Santa Rosa and Considering a Divorce, we briefly touched on a few points to consider about a divorce in Sonoma County. Today in this post, we are going to take a look at a few of the specifics.

Documentation
Just a bit of forethought does much to ease the divorce process. Copies of home files, be they bank statements, or any documentation regarding the mortgage, credit cards, wills and so forth are much easier to obtain while you are still in the family home and have yet to file for a divorce, than afterwards. These records are still obtainable after you file for divorce but that process will involve time and money. Your circumstances may be such that you are not privy to your spouse's financial information. Now might be a time to discuss the subject with your spouse. If for whatever the reason a discussion of this nature is not a possibility, such information may be stored on the family's home computer, and if so, copies can be made of all financial information. This will be an important asset to you down the road.

A List of Household Items
The list doesn't have to be extensive, but should include all items of significance such as
vehicles, jewelry, furnishings and so forth. Some of these items may be in a safety
deposit box, or storage unit, so a trip to either would be advisable.

Expense of Running a Household
How much money do you as a couple have to run it? If you have a copy of your check register, or more likely in this day and age, access to online banking records, make a list of cash outlays, expenses, mortgage utilities etc., for the past year. It is important to establish these numbers so that should temporary support be awarded you have a foundation of the accuracy of the assessment. Additionally, this will give you a clear understanding of if, after your divorce, you will or will not be able to maintain on your own the family home.

Debt
We sometimes forget that it is not only assets that are divided during a divorce, but debt as well. Try to calculate the amount of family debt and If possible, think about. Distribution of the debt created by your family can be a challenging task but it does need to be taken into account. It may be advisable to begin paying towards this debt before initiating a divorce. Are there credit cards that can be discontinued or any other avenue of access to joint funds? Access to those funds by an irresponsible spouse could further diminish available assets that would otherwise have been divided up between you and y our spouse. Another factor to consider is if the debt was incurred by your spouse prior to the marriage. If that is the case, it may be that that debt is not to be considered as a joint liability from the marriage.

Income
If all of your spouse's income comes from salary earned, then this task is made simple by just looking at documentation from their pay check. Should your spouse be self-employed or perhaps for what ever the reason, receives much of his income in cash, then the process becomes a bit more daunting. Determining these amounts and then keeping tabs on it for a few months can help you greatly during the divorce.

Your Earning Potential
If you have been out of the work force for some time, perhaps taking time off to raise your family, you may need to take a look at what types of employment you may be able to secure and what level of income you may be able to achieve given your particular set of skills. Are you going to have to go back to school, or require some other form of training? How lengthy and involved might this process be? If travel was a significant factor in your prior employment, this may pose difficulties should you have younger children. What are the costs of and what type of childcare is available in your area?

Your Credit History
Perhaps you do not currently have your very own credit card(s) ; a credit card that is only in your name. Apply for one or two now and begin using the credit cards now. This will begin the process of establishing a credit history for you, one not tied to your spouse. This will go a long way towards helping you after your divorce.

Nest Egg
Simply thinking about a divorce does not of course mean that the possibility will ever become a reality. Even so, even if a divorce is not imminent, it is important to have funds that are yours and yours alone. What will happen should you need funds while waiting for temporary support to be established? What about funds for an attorney? Do you think you may be the one to move out of the family home? If so, you will no doubt require funds for a security deposit or any assortment of items to fill your new home. Today is always a good day to begin saving for a time that may or may not take place. Better safe than sorry.

Priority ONE: Your Children
As you recognize that your path is leading to a divorce, your days may be spent collecting the documents, documentation and information required to put your plans into action. This all takes time. Your children, perhaps your young children or even your not so young children must still be placed first. Your divorce is not only about you and your spouse, but about your children as well. If possible, keep the status quo of their routine as consistent as you can. Any strife between you and your spouse should, if at all possible be kept out of the orbit of your children. If you've been active in their lives as far as school, homework friends etc, stay that way, and if not, perhaps now is a good time to get involved. Try not to rob your children of their childhood by placing them in the role of your psychological support system. Children deserve to be children and it is up to the parents during and after the divorce to ensure that this is your highest priority.

Children are precious. Unfortunately, in many Santa Rosa child custody and visitation disputes, the children are considered the prize that both parents want to win. Sometimes a parent will take advantage of visitation and refuse to return a child at the agreed-upon time. If there is no court order regarding physical custody, Sonoma County law enforcement cannot do anything unless the child is in danger. If you find yourself involved in this difficult circumstance, there are some things you can do to ensure you are acting in the best interests of your child and within the law.

Try to Talk it Out
The very first step should be to attempt to work things out with your ex without involving outside parties. You should attempt to find out why your ex does not want to return the children. Does she feel like they do not get enough time with the children? Does he have concerns about the health and safety of the children while they are in your care? Find out if you can resolve these issues between the two of you.

Contact Law Enforcement
While your local Sonoma County law enforcement officials will not be able to do anything unless the children are determined to be in danger, call them anyway and ask to file a statement. This protects you by having the situation officially documented. This is important because the children's other parent could state that you refused to pick them up and this will alleviate this.

Document Everything
Make sure to write down when you dropped the children off, when you attempted to pick them up and any conversation that took place between your ex and yourself. You should also note your children's behavior that you are able to observe - were the children trying to get out the door when they saw that you were there? Could you hear them in the home? Did you get to see them at all?

Go to Court
If there is already a custody order in effect, then there are procedures in place for going to court to file for a contempt of court complaint and obtaining an emergency custody order. You may consider contacting an experienced and knowledgeable attorney to ensure that you and your children are being protected. Other services or programs may be ordered at that time, such as parenting education, home studies, background checks and possibly psychological testing and counseling. At this time, the judge will also approve a temporary custody order which will stand until programs are completed and the final custody order is determined.

Sonoma County Child custody and visitation disputes can be a stressful part of divorces and breakups. It is hoped that both parents are able to communicate well enough to work through these issues on their own. However, if you are unable to resolve these disputes on your own, the legal system will become involved and decide for you, in the best interests of the child.