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.
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.
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
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.