I often need to clear up misconceptions from many people about how divorce actually works. Often, these mistaken beliefs are gleaned from television and films or from stories people have heard through the grapevine. Below, are some common misunderstandings about divorce.
Myth #1: If everything is in my name, it’s all mine.
Who owns what becomes particularly tricky during a divorce. California is a community property state, which means that any asset acquired during the marriage belongs equally to both spouses. For example, you may have bought that car, and it is in your name, but if you purchased it after you were married, it technically belongs to both of you. If there are still payments to be made on the car, the debt belongs to both of you, too.
In the divorce, you would have to decide how to split the asset—such as sell the car and split the money, or keep the car and buy the other spouse out. It does not matter that during the entirety of your marriage, you drove the car exclusively and referred to it as “my” car.
Myth #2: I don’t have to work — I’m getting spousal support
Spousal support is not a means to not work, or work less. Any spouse who is non-working, or working for less than their potential, is still on the hook for becoming self-sustaining, unless there are extenuating factors, such as a long-term marriage or age.
If you are able to work and refuse to do so, the court could intervene and determine that you are under-employed -- that is, you are employed but earning far less than you should be given your ability. At that point, the court would consider the amount you should be making as the figure on which spousal support is based, even if you make far less. This applies for the payor spouse, as well as the recipient spouse.
Myth #3: Physical Custody and Legal Custody are the same.
Contrary to popular belief, child custody is not a “winner takes all” situation. There are two components to child custody (legal custody and physical custody).
Legal custody refers to a parent’s decision-making authority regarding the child’s schooling, religious upbringing, medical treatment, psychological care, etc. Legal custody can be awarded to one parent or split between the two, referred to as "joint custody."
Physical custody refers to where the child's primary residence will be. Physical custody may be awarded to one parent or be split like legal custody. If both parents have physical custody, there is usually a visitation schedule. If the parents can’t agree on the visitation schedule, the court will decide for them.
Myth #4: Moms get privileged treatment from the courts and can make unilateral decisions for their children.
If contested, decisions of physical and legal custody are determined by the court based on the child’s best interest, regardless of which spouse is the mother. In other words, moms do not receive special treatment.
Myth #5: In California, infidelity can impact your divorce.
It may seem strange, but it’s true: infidelity (proven, or otherwise) has absolutely no impact on your divorce, no matter how much heartbreak you endured. Though it may not seem fair, that is the case. Every divorce in California is considered "no-fault.”
Myth #6: Custody and visitation arrangements are permanent.
Yes, you must adhere to the court's orders. However, you can request a change (known legally as a modification) under certain circumstances.
If both parents agree to a modification, they can file the modified agreement with the court and have that become the new order.
If one parent can prove there has been a significant change since the original court order, and the change is in the best interest of the child, they may able to get a modification, even if the other parent does not agree.
Myth #7: In California, alimony payments are tax-deductible.
It used to be the case that all alimony payments were tax-deductible in California. That all changed in 2019. New tax law dictates that starting for divorces occurring after December 31, 2018, all the alimony payment tax deduction is eliminated. Couples who got divorced before December 31, 2018 can still take the deduction.
Depending on how much spousal support you are required to provide, this shifts the calculus in divorce proceedings and could make the financial penalty for a person paying spousal support much greater.
Park Family Law Can Help
To help you obtain the best terms for all the complicated aspects of your divorce, call the attorneys at Park Family Law.
Whether you need an experienced mediator to amicably and efficiently settle your case or an aggressive litigator to get you the best results in court, Park Family Law can assist you every step of the way.