2015: 8 Commonly Misunderstood San Diego Divorce, Legal Separation and Paternity Issues

COMMON MYTHS IN LEGAL SEPARATION, PATERNITY AND DIVORCE CASES IN SAN DIEGO SUPERIOR COURT

Family law is very complicated and also ever changing. Many spouses and parents rely on inaccurate information which can have detrimental effects on their pending case whether a paternity, divorce or legal separation. It is crucial to have accurate and correct information so an intelligent and informed decision can be made whether to settle or litigate. Below is a list of common myths however there are many others. A consultation with an experience family law attorney can help you dispel any misconceptions you may have regarding the law or procedure for your San Diego Superior Court case.

Myth 1: If my spouse withholds support, I can withhold visitation.

Truth: Child support payments are an independent legal right that are required and enforceable by a court order. Despite the nature or failure to make these payments, courts will always protect the child’s right to have time with both parents. Consequently, parents cannot withhold visitation as a remedy to for unpaid support. Parents with child support payment issues should go back to court to get help from the Judge to collect unpaid support. Withholding contact could cause you to violate a court order and risk the potential of a contempt motion. You might additionally be subject to a change of custody to the other parent.

Myth Two: After I file for divorce, I only need to wait 6 months before I can get remarried.

Truth: Simply filing for divorce does not permit a person to marry someone else after 6 months. Often there are additional requirements which must be met before you can remarry. Anyone who files for divorce must first get a court to issue a specific judgment that terminates marital status. You will not be returned to the status of a single person until 6 months have passed from the date you filed your divorce petition and the petition was served on your spouse or the date of the notice and acknowledgment of receipt which was filed or the date a response was filed. Many, unfortunately, do not wait and remarry which can cause many issues in the future.

Myth Three: If my spouse marries someone who makes a lot of money, my child support payments should be reduced.

Truth: The income of a new spouse or partner cannot be used as a factor to reduce child support obligations. In fact, the new spouse income is not “added” to the income of the parent for support purposes. As such, if the income of the new spouse is high, then it is possible that the support would be reduced since the other parent’s net income would decrease due to increased tax basis.

Myth Four: If I marry someone that makes a lot of money, will my child support payments will go down? Truth: Again, the income of a new spouse or partner cannot be used as a determining factor to reduce or influence child support payments. The same analysis as in Myth 3.

Myth Five: If I don’t like the Judge’s decision on my family law issue, I can always appeal.

Truth: You do not have the right to appeal a decision simply because you did not like the Judge’s decision. As a general rule, only a legally wrong decision can be appealed. For this reason, there must be an issue that would justify a higher court reviewing the lower court's decision. You should note that appellate law is extremely technical and requires the assistance of an experienced family law appellate attorney. In addition, statistically, appeals are more often denied than granted and an appeal can be very expensive and also subject the one who appeals unsuccessfully to attorney fees for the other party.

Myth Six: You must be married a minimum of 10 years to get a part of your spouse's retirement or pension rights. Truth: California is a community property state. This means that any earnings acquired from date of marriage to date of separation are considered community property. These includes retirement benefits, pensions, profit sharing, stocks and many more assets. The length of your marriage does not impact your right to half of community property acquired from date of marriage to date of separation. There is a “10 year rule” with regards to a long term marriage for duration of spousal support however this is independent of the division of a retirement or pension right.

Myth Seven: Credit card debt in my spouses name during our marriage belongs to my spouse.

Truth: Just like earnings and assets, debt is also factored into community property allocations and should also be divided. This means that you can be held accountable for the debts incurred during the marriage by your spouse. It does not matter whether you agreed to the debt or even knew about the debt. There are some limited exceptions such as student loans being assigned to the spouse who took out the student loan and it is important to know whether all debts will be divided equally. In addition, for negative asset cases, there may not be an equal division of the debts.

Myth Eight: My spouse moved, so they should have to pay any travel costs associated with visitation.

Truth: The cost of travel, much like the duty to pay child support, is determined by the incomes of the parties. If the parents have equal incomes, the court will expect the parents to share transportation costs equally. If one spouse earns more, the court can apportion the travel costs between the parents. This is, commonly in family law, called a “negative add on”. The move is not a fault issue and the best interests of the child or children is paramount and this means both parents are normally responsible for travel expenses.

About the Law Office of Doppelt & Forney, APLC:

Here at the law office of Doppelt & Forney, APLC, we often get client questions and comments that show the many ways people misunderstand California family law issues. Above are 8 common family law myths that we encounter in our practice and the corrections to these misconceptions. Come take advantage of our experience as we help you determine the best way to achieve your family law legal goals. Please come see us for questions about support, custody, or any of the other facets of family law. As members of the State Bar of California and the San Diego Better Business Bureau, we would love to serve your legal needs. Our offices are in Rancho Bernardo just off the I-15 freeway. Exit the freeway at the Rancho Bernardo Drive exit, then continue to the Clock Tower Office Complex. We are located on the second floor by stairs or elevator. If you would like to schedule an appointment or ask questions, we can be reached online or at 858-312-8500. Call us to schedule an appointment for your complete and confidential legal consultation today!

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