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California Divorce
Myths & Pitfalls
- Once I file my divorce
case, I can remarry.
Absolutely not! Marrying
again before your spouse is
dead or you have been
properly divorced generally
results in bigamy. You are
not free to re-marry until
you ask for, and receive,
notice from the court that
you are, once again, an
unmarried person.
Further, the court will NOT
issue this notice until at
least six months from the
date of service of the
dissolution petition or
filing of the response.
- The date of separation
is the date my spouse moved
out of our house.
Not
necessarily. "Date of
Separation" is a legal term
that may ultimately have to
be decided by the judge and
hinges on when at least one
spouse decided they did not
want to be married anymore.
Couples can live in the same
house and have already been
"separated" and, conversely,
couples living apart may
still be considered
"together". It is also
a very important date
because all money received
after date of separation
generally belongs to the
person who received it.
Note: "Legal Separation" is
an entirely different legal
concept.
- If I want to be legally
single again, I can just go
to church and ask the priest
for an annulment.
Whether or not a religious
entity has cancelled a
marriage is irrelevant in
terms of whether a
California marriage still
exists. While you may chose
to have your marriage
"annulled" in church, you
generally must get
"divorced" by the California
Superior Court in order to
be single again. Only a few
very unique sets of
circumstances would qualify
for a California annulment
(which returns to you to the
status of having never been
married). Good luck!
- When we bought our house
my wife put it in her name
because she had the better
credit. Therefore, the house
is hers.
In
California, possession is
NOT 9/10 of the law! While
the status of who holds
title might be a factor in
identifying "marital"
assets, it is not the only
one. Factors such as the
source of purchase funds and
the intent of the parties
also play a part.
- I signed a pre-nup, so
I'm entitled to nothing.
Not so
fast! In California,
pre-marital agreements are
sometimes unenforceable. The
agreement must satisfy a set
of conditions before it can
be honored. In
addition, any waiver of
child support rights is
invalid as those rights
belong to the child, not the
parents.
- I locked my husband out
of the house. Therefore, he
has no right to move back
in.
Unless you get a court order
("stay-away" or restraining
order), each party has equal
right to community property
(i.e. housing, money and
cars). Although they
ultimately will have to
account for it, no spouse
has a greater right to the
couple's possessions or
property.
- My wife says there is no
way she is giving me a
divorce. I guess I'm stuck.
California
does not require that both
spouses consent to the
divorce. Although he or she
may be able to delay the
inevitable with crafty
litigation tactics, it will
(eventually) be done. Also,
if your divorce is dragging
on and you just can't wait
to be single again, you can
request that your divorce
case be "bifurcated" and a
judgment be rendered as to
"status" only. While you
will then be single again,
you must eventually settle
any remaining property
division or spousal support
issues.
- I'm a man, so I'd never
get alimony even if my ex
makes more than me.
California courts are
supposed to apply the law
equally to both sexes.
Therefore, whether you are a
man or a woman should have
no effect on whether you
qualify for spousal support.
However, factors such as
length of marriage, earning
potential, age, marital
standard of living and
income matter greatly.
- I managed to hide assets
from my husband during the
divorce. Now that everything
is final, there is no way he
can get his hands on them if
he figures it out.
Generally, a court retains
jurisdiction over undivided
assets. Therefore, if an
assets pops up, he can go to
court and have it split. It
is possible to waive any
right to division of assets
discovered in the future,
however the waiver might not
hold up if he can prove
fraudulent concealment.
Full, fair and truthful
disclosure is not only the
right thing to do, but it
can save you from a lot of
trouble down the road.
- I can prove that my
husband cheated on me
repeatedly, so the judge
will give me everything I
ask for.
Neither the law, nor the
judges at the Los Angeles
Superior Court, care who or
what caused your marriage to
fail. Nor do judges have the
ability to veer dramatically
from 50/50 property division
and spousal support
guidelines. Further,
spending time on irrelevant
issues such as "fault" will
cause you to lose focus on
the essentials and may even
harm your case. With that
said, your hubby's
current and serious
extra curricular
activities (be they drugs,
alcohol or beyond) may
be a factor in a child
custody determination.
Beware, however, as
character assassination that
is neither relevant nor
substantiated will probably
backfire on you.
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