COMMON MISCONCEPTIONS ABOUT DIVORCE & FAMILY LAW
Feb. 10, 2021
Many people believe family law only encompasses issues linked to divorce, such as child custody and alimony. In reality, family law includes many more legal processes than just divorce. It includes any area of the law involving family relationships, such as paternity, emancipation, adoption, foster care, and eldercare. A family law attorney might also handle estate planning because it can play a role in pre- and postnuptial agreements, as well as inheritance.
Because family law involves personal relationships, matters can become contentious and stoke fears that are often unwarranted. Before you allow them to become a tremendous source of stress in your life, get the facts. Family law is essentially structured to protect people, not punish them.
For more than 20 years, our team at The Law Offices of Steven E. Springer has provided experienced and knowledgeable representation for clients in San Jose and Morgan Hill, California, as well as the surrounding communities. In this post, we hope to dispel five of the most common misconceptions about family law.
1. ALL DIVORCES ARE THE SAME.
No two marriages are identical, which means no two divorces are either. California’s status as a “no-fault” divorce state means couples need not detail in open court why they are seeking a divorce. They need only acknowledge that the marriage is irretrievably broken. A couple’s ability to agree on key issues, including child custody and support, spousal support, and division of marital assets and debts often depends upon their ability to communicate, be reasonable, and approach the details of the divorce with a “cool head.” Couples who fail at this will endure a protracted legal process during which the court will ultimately decide these issues.
2. IF ONE PARENT DOES NOT PAY CHILD SUPPORT, THE OTHER PARENT CAN WITHHOLD VISITATION.
Child support and visitation are two separate issues. Both parents are legally obligated to provide financial support for their children, but the parent without primary custody is not “paying” to see their children. Visitation is the child’s right to have a relationship with both parents. If you attempt to violate the court-approved visitation agreement by not allowing the other parent to spend time with the children, and you return to family court, the judge will not appreciate your attempt to punish the other parent at your children’s expense.
3. THE MOTHER IS ALWAYS AWARDED PRIMARY CUSTODY OF THE CHILDREN.
For a very long time, moms tended to stay at home and dads went to work outside the home, so the mother was typically awarded primary physical custody of the children in a divorce. The yardstick for the court now is what is in the best interest of the children. In determining the children’s best interest, the court considers their health, safety, welfare, and any history of abuse by either parent. The court is guided by the premise that frequent and ongoing contact with both parents is most beneficial.
4. IF ADULTERY WAS INVOLVED, THE SPOUSE WHO WAS CHEATED ON GETS EVERYTHING.
California is a no-fault state, so the court is not permitted to consider the act of adultery alone. The court can, however, take adultery into consideration if it affected marital property or the relationship between a parent and child. For example, if one parent can prove the other used marital property on an adultery partner — such as money from a joint bank account — the cheating spouse may have to compensate the other spouse in the division of assets and debt. Or, if a parent neglected their children to spend time with an adultery partner and caused the children emotional harm, the court may consider it when rendering the custody agreement.
5. ASSETS WON’T BE SPLIT 50/50.
California is a community property state, which means the court will divide marital property evenly between the spouses unless the spouses agree to another arrangement. Even then, the court must approve the division of assets to ensure that one spouse is not being treated unfairly by the other. Although it can be rebutted, the court’s presumption is that any property acquired in joint form during the marriage is community property and therefore subject to equal division.
GET HELP FROM AN EXPERIENCED FAMILY LAW ATTORNEY
Most divorces are complicated. Various assets, liabilities, and the need for child custody agreements make them even more complex. No matter what type of family law issue you may be facing, the place to start is always knowing the facts. An experienced family law attorney can help.
At The Law Offices of Steven E. Springer, we have helped hundreds of clients get the facts about family law in San Jose and Morgan Hill, California, and the surrounding areas. We are dedicated to delivering those facts with compassion for our clients as they face life-changing events.
If you have questions about divorce or other family law situations, we have answers. Call our office now to schedule a consultation.