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Misconceptions About Divorce

People have an opinion on everything, including marriage and divorce. Once they hear you are having a divorce, they will offer solicited and unsolicited advice, which is mostly assumptions. You may also be considering the misconceptions that you believe are true. In this blog, the San Diego Divorce Attorney will help you know the myths and misconceptions about divorce by providing you with the facts.

  1. The Mother Always Gets Custody

In the past, most custody settlements may have been made in favor of the mother. However, courts today consider many factors before deciding on the most appropriate custodial parent. The best interests of the child are the significant standards when deciding custodial matters. Therefore, the parent who will provide a stable environment for the healthy physical, emotional, psychological, and educational well-being of the child will get custody.

Some of the factors that determine custody include:

  • The financial and physical ability of both parents to provide the basic needs for the children
  • The physical and mental health of both parents - you may be denied custody if you are of mental or physical health issues
  • The age and health of the children
  • The habits of both parents including alcohol and drug use
  • The agreement between both parents
  • The level of enjoyment the child gets from the status quo of the parents
  • The level of adjustment required by the child
  • The emotional bond between the child and the parents
  • The willingness of both parents to support the relationship between the other parent and the children

The court may also award joint custody (where both parents get partial custody). In this case, both parents will stay with the child(ren) on a predetermined and court-approved schedule. In joint legal custody, one parent may have full physical custody, but the other parent must contribute in making major decisions regarding the religion, education, and medical care for their child.

  1. The Custodial Parent Can Deny Visitation If The Non-Custodial Parent Fails To Pay Child Support

It sounds logical to the human mind that a parent should pay child support if they want to be in the child’s life. It makes sense given the high cost of living and the financial burden of raising a child alone. It also makes sense to stop paying child support if the custodial parent refuses to let you see your children. However, it is illegal for any parent to violate the child visitation or child support orders by the court.

When making decisions about visitation and child support, the court is often looking out for the best interests of the child. When parents use these as their avenues to fight, the children are hurt. Child support relieves the custodial parent with the burden of raising a child alone and enables the child to access better education and medical care, not to mention enjoying a better life, from the joint incomes of the parents.

Child visitation, on the other hand, allows the child to form a relationship with both parents. When you divorce or separate from your spouse, you may feel that the partner ceases being the mother or father of the child, which is wrong, and so is denying visitation or child support.

If one parent fails to meet their obligations, it is best to solve the matter in court. As the custodial parent, denying visitation rights can lead to loss of custody. If you feel that the non-custodial parent is a threat to the child(ren), you must report to the court for the visitation order to be modified. As the non-custodial parent, failure to pay child support can result in wage garnishment, loss of licenses, and interception of tax refunds.

  1. You Do Not Need A Divorce Lawyer

Whether or not you need a lawyer depends on your circumstances. When couples decide to divorce, they can choose to make decisions and solve their differences amicably or involve a mediator. In such a case, they may not need a lawyer and may ask a court, in writing, to grant them a divorce. Thus, they may not need to appear in court.

Moreover, where the divorcing couple has no property or children, then they do not need a lawyer to handle the divorce.

For a contested divorce, it is best that you hire a lawyer. Divorce can be filled with a lot of emotions, anger, hatred, and bitterness. These emotions can cloud even the best person's judgment – which is understandable.

A lawyer will help refocus your attention on the important things and help you in settling matters with your spouse. Even when the divorce goes to court, your lawyer will represent you and provide the necessary legal help throughout the process.

Some of the circumstances under which you can hire a lawyer include:

  • When you and your partner have agreed, but you need the legal documents to be drafted
  • Your spouse has hired a lawyer
  • Presence of abuse in the marriage or if you fear that your spouse may turn violent towards you and the children
  • You feel that your spouse is not straightforward
  • Your divorce involves complicated issues such as children and property

Ensure that the lawyer you hire has your best interests at heart. Do not pick one who will prolong your divorce over minor issues.

  1. Each Party Gets Half The Property

California follows the laws of equitable distribution of property during property settlements in divorce. Equitable division does not necessarily mean equal. In an equitable division, both parties receive property rights and obligations depending on their contribution and the type of property (community, marital, or separate property).

Some of the factors taken into account when dividing property include:

  • The liability one spouse is likely to suffer due to the length of the marriage. For example, a stay at home mum who has spent ten years out of the workforce may find it harder to be employed after a divorce.
  • The contribution of both spouses, where the judge measures the monetary and non-monetary contribution that directly or indirectly facilitated the acquisition of property - For example, if your wife stayed at home looking after the children and minding the household affairs, then she played a role in you having time to dedicate to your career.
  • The assets and debts accumulated during the marriage

Property distribution is also separate from child custody. Also, property under your name is not necessarily your property.

  1. One Spouse Can Deny The Other Divorce

One spouse may think that by denying the other divorce, they may change the outcome of the divorce. They may have convinced themselves that by resisting, the other party will stop pursuing the divorce.

California has a no-fault divorce system, meaning you only have to cite insanity or irreconcilable differences to get the divorce. Your spouse cannot deny you a divorce; only the court can stop you from getting a divorce (if you follow the wrong procedure).

The use of the no-fault system removes the need for either spouse to place the blame on the other or defend their actions. This makes it easier for both parties to move on after the divorce.

If a spouse resists the idea of divorce or refuses to sign the divorce papers, the court can issue an uncontested divorce or a default divorce.

If you are dealing with an uncooperative spouse, you should contact a lawyer to help you in filing for a default divorce.

  1. Divorce Must Go Through Trial

Divorce can result in dragged court battles that go on for years. It can drain you emotionally, physically, and financially. However, it does not mean that every divorce must go through a trial.

Many activities go on before a divorce can go to trial. Most divorces are settled in the pretrial phase. During the pretrial phase, you can involve mediators and lawyers who will help you put things in perspective and solve your issues.

Most divorce lawyers usually prepare for trial but will try to work towards a settlement. Most divorce cases that end in trial leave deep emotional scars, hatred, bitterness, and exhaustion for both parties. It can also be damaging to the emotional and psychological health of the children.

  1. Children Are Better Off When Parents’ Divorce

Children are the innocent victims of divorce. They can be hurt or benefit from the divorce depending on the relationship between the parents and the environment in the home. If one spouse is violent towards the other or the children, then a divorce is the best option for the spouse and the children. Some myths associated with what effect a divorce has on children include:

  • Younger children are not affected by divorce, as they have no recollection or understanding of the divorce. However, in as much as they do not understand what is going on, they are well aware of the emotional shifts going on. They can feel the changes, making them prone to emotional trauma.
  • Each parent can use different rules for parenting the children: children thrive in stability and consistency. It gives them a sense of grounding and increases the chances of them developing into well-adjusted people. It is best for divorcing couples to come up with a co-parenting plan to ensure that their children have a healthy emotional and psychological development.
  • The child should know who was at fault for the divorce. Whatever happened between the two of you should not be told to the children. Do not expect them to share your hatred or hurt from the actions of the other parent. It will only hurt their emotions and in some cases, lead to anger against yourself.

When you decide to get a divorce, you should try to solve your issues as amicably as possible, for the peace of the children. Also, you should support the relationship of the child and his or her other parent unless such a relationship goes against the best interests of the child.

  1. The Woman Will Always Get Alimony

Alimony is the money paid out to one spouse by the other to reduce the economic effect a divorce might have on the other spouse. In the past, it was usual for women to get alimony during divorce since they were mostly unemployed. Such women would end up in poverty after a divorce and would be unable to obtain employment as quickly as their husbands would.

Today, however, it is possible for a woman to walk out of a divorce without alimony. The scales have tipped considerably, and roles have changed. Where both partners are working, alimony may even be harder. The court has to consider some factors before they decide on whether to award alimony and the amount. These factors include:

  • The length of the marriage
  • Whether both spouses are working, the nature of their employment and the earnings
  • Level of education
  • Job held before marriage
  • Skills or additional education gained after marriage
  • Your age and health
  • The ability of the partner to pay alimony
  • The assets and liabilities of each spouse
  • The support you offered to your spouse during the marriage in their pursuit for education or training
  • The standard of living during the marriage
  • The agreement on a prenuptial agreement

Depending on the circumstances, the court might award temporary or permanent alimony. It may be awarded to the wife or husband depending on which partner will be at an economic loss after the divorce.

  1. Divorce Brings Freedom

While a person may feel relieved for a while after being divorced, they may experience feelings of loneliness. A marriage creates strong emotional and psychological bonds between couples, which can make it harder to divorce or increase chances of depression and instability. 

Many people think that divorced couples become immediately available after a divorce. However, the emotional toll and exhaustion from a failed marriage can take months or years to get over. They may engage in casual relationships but may be unwilling to commit to another relationship.

Find a San Diego Divorce Lawyer Near Me

The process of divorce can be emotional to both partners, especially if it is contested. Even when the couple decides a divorce is the best option, it may leave emotional scars and feelings of failure, inadequacy, and rejection. If you are going through a divorce, you cannot afford the extra burden misconceptions will place on your divorce. Contact the San Diego Divorce Attorney for accurate information. You can reach us today at 858-529-5150.


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