When going through a divorce, it is important to have as much accurate information as possible. Unfortunately, over the years, flawed assumptions and faulty information have proliferated across the internet, and this has resulted in the establishment of a number of common and widely-dispersed myths about getting divorced in California.
The Myth: You Can File for a Fault-Based Divorce if Your Spouse Cheats on You.
The Truth: California is Purely a “No-Fault” Divorce State.
While some states still allow spouses to file for divorce on fault-based grounds, California is purely a “no-fault” divorce state. Under Section 2310 of the California Family Code, there are only two grounds on which spouses can file for divorce: “(a) [i]rreconcilable differences, which have caused the irremediable breakdown of the marriage[; or,] (b) [p]ermanent legal incapacity to make decisions.” The vast majority of divorces are filed on the basis of “irreconcilable differences.”
However, this does not mean that your spouse’s cheating is entirely irrelevant to your divorce. For example, if your spouse used community assets to pay for gifts or trips, then these expenditures may be deductible from his or her share during the equitable distribution process. Of course, evidence of cheating can add to the overall contentiousness of the divorce process as well.
The Myth: In California, Divorcing Spouses Must Split Their Assets 50/50.
The Truth: California Requires an “Equitable,” But Not Necessarily Equal, Distribution of Community Property.
While California is a community property state, it does not require divorcing spouses to divide their assets equally. Instead, what California law requires is an “equitable distribution” of community property. Assets that qualify as one spouse’s separate property are not subject to distribution, and community property assets must be divided based upon a determination of what is “equitable” under the facts and circumstances involved. While this could mean a 50/50 split, it is not uncommon for divorcing spouses to agree to an unequal distribution of community property.
The Myth: The Wife Always Gets Alimony in a California Divorce.
The Truth: Alimony is Not Always a Part of the Divorce Process in California, and Husbands and Wives Have Equal Opportunity to Seek Alimony.
Alimony is not awarded in every divorce. In California, awards of alimony are generally reserved for cases where there is a significant disparity in the spouses’ current incomes or their earning capacity. But, when determining whether an award of alimony is warranted, the analysis goes both ways: Either spouse can potentially receive an award of alimony depending upon which spouse has the greatest earning power.
Specific factors considered in determining whether an award of alimony is appropriate include:
- The length of the marriage
- The spouses’ respective financial needs
- The spouses’ respective abilities to pay
- The spouses’ respective education levels and work experience
- The spouses’ respective ages and health conditions
The Myth: The Mother Always Gets Primary Custody in a California Divorce.
The Truth: Just Like Alimony, Both Parents Start on Equal Ground When It Comes to Determining Custody in California.
In California, as in other states, child custody determinations are always made based upon a determination of what is in the “best interests” of the couple’s children. Just like the factors that apply to alimony, California’s best interests factors do not inherently favor either spouse.
Contact Richard M. Renkin, North County Divorce Attorney and Certified Family Law Specialist
If you live in the North County, San Diego area and have questions about divorce, we encourage you to get in touch. To request a confidential initial consultation with attorney Richard M. Renkin, please call 619-299-7100 or send us a message online today.