California Divorce Myths & Pitfalls
 

  1. 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.
  2. 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.
  3. 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!
  4. 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.
  5. 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.
  6. 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.
  7. 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. 
  8. 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.
  9. 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. 
  10. 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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