Common Misconceptions of Marriage and Divorce in California

Many of the family laws in California are based on its Spanish history, including the concept of community property in marriage. Many are also based on the values and views of society at the time of their enactment, such as who has the right to marry and who has the right to divorce.

In 1970, California overhauled its entire marriage and divorce laws to reflect the society Californians had become. One of its biggest changes was its “no-fault” divorce laws. It continues to maintain its relevancy today by updating current laws and enacting new ones when necessary, such as those concerning same-sex couples, for example.

With that in mind, listed below are common misconceptions about California laws governing marriage and divorce.

Marriage

Misconception: The separate property of an individual becomes community property upon marriage.

Fact: An individual’s separate property remains his/her separate property before, during and after marriage. This means that only the owner of that property has the right to control it. The property designation does not change merely by the act of marriage. However, property can change character from separate to community by “co-mingling” or from community to separate by “gifting” the property to one spouse by the other.

Misconception: People automatically become common law spouses after living together for a period of time (often thought of as seven years).

Fact: There is no common law marriage in California, and no period of time will establish a marital relationship between the two parties.

Misconception: One spouse (usually the husband) has access and control of the marital assets and debts in the marriage.

Fact: Both parties have the right to access and control of the community property and debts in a marriage. However, neither spouse has the right to give gifts of community property to third parties.

Divorce

Misconception: Filing for divorce before the other spouse ensures control of the legal process OR the spouse being divorced is treated like a “victim” by the court system.

Fact: Whether the spouse is the petitioner (the one filing for divorce) or the respondent (the spouse being divorced), both parties are treated the same by the legal system.

Misconception: A spouse who commits adultery during the marriage will be punished by the legal system.

Fact: California is a no-fault divorce state, and whether one spouse has committed adultery will not be a factor in determining whether the spouses can end their marriage, who gets custody of the children and/or in the distribution of the community property.

Misconception: Mothers are automatically granted custody of the children after a divorce.

Fact: California law states that it is in the best interests of the child(ren) to have continuing contact with both parents and must grant joint legal and physical custody as the first option in determining custody. Sole legal and/or physical custody is only granted when it is in the best interests of the child to do so.

Misconception: Hiding assets from the other spouse will ensure a better divorce settlement.

Fact: California law states that both parties must disclose all their assets (both separate and community) to the other spouse upon filing for divorce and cannot hide or dispose of the community assets unless it is within the normal course of living (such as funds needed for food, housing, etc.) If a spouse is found to have hidden a community property asset, that asset can be forfeited to the other spouse.

Misconception: California courts grant spousal support (known as alimony in some states) to a spouse harmed by the other spouse.

Fact: Spousal support will only be awarded when one spouse needs that support to maintain the lifestyle had during the marriage and the other spouse has the ability to pay that support. In a no-fault state, spousal support is never ordered as a punishment for a spouse’s wrongdoing.

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