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A RTIANO  & A SSOCIATES
            ATTORNEYS AT LAW

Artiano & Associates
A Professional Corporation
3828 Carson Street
Suite 102
Torrance, CA 90503-6713
(Los Angeles County)
10 Misconceptions That Concern Your Ex

1.  All property acquired during your marriage is automatically considered "community property" and divided equally upon divorce.

 1.  Not necessarily true. Although income and property purchased with earnings during the marriage is community property, gifts, inheritance and transmuted property (transferred to a spouse) are separate, not community property.

2.  My former spouse is marrying someone with money so the child support payment I make will decrease.    

2.  Not true.  Child support is based on need and each parent's ability to pay support.  The fact that your former spouse is marrying someone with money does not change your ability to pay for your children.  However, the new spouse's income may be considered in the setting of support, if the new spouse's income allows that parent to have more disposable income to pay child support.

3.  My former spouse is not paying child support, so I can prevent him from having any visitation with the children.    

3.  Absolutely not true.  Your former spouse's obligation is a court order.  The child visitation schedule is also a court order.  Both are separate and independent of each other.  The violation of a child support order does not give you the right to deny visitation.  Each of you can take the other to court, you both are wrng and could be sanctioned by the court.

4.  Even though we are not married, we have been living together for more than several years.  Under common law, I am entitled to half of my "significant other's" income and property.     

4.  Not true.  California is a community property state and does not recognize "common law" marriages.  The only way that property rights are obtained is through either a validly recognized marriage or registered domestic partnership.

5.  If I name a man as the father on a birth certificate, that is proof that he is the real father of the child, I do not need a paternity action.    

5.  Not true.  There are presumptions of paternity based upon the marital status of the mother.  If the mother is not currently married or recently divorced, then the only way to establish paternity is through a paternity action.  Most paternity is resolved through blood tests or tissue typing tests that obtain blood samples from the mother, child and presumed father.

6.  My husband moved out of the house, so we are "legally separated."    

6.  Not necessarily true.  The act of one spouse physically removing themselves from the marital residence can be an indication of separation.  However, separate is based upon the subjective intent that the marriage is over.  If your spouse has intentions of someday moving back, no separation has occurred. 
*Note:  a "legal separation" is different from parties being separated.  A legal separation is a process like a dissolution of marriage without the marital status ending.

7.  Any property that I had before marriage and bring into the marriage is my separate property and will always be my separate property.

7.  Not necessarily true.  Yes, property that one spouse had before marriage is his or her separate property.  However, without a prenuptial agreement, money or property that is transmuted or commingled (mixed with community property) will be considered community property, not separate.  Separate property with a title remaining unchanged or not mixed with community property will retain its separate property character.

8.  Divorce only takes six months to complete and then I can get remarried. 

8.  True, depending on the circumstances.  Uncontested or relatively simple divorces can be completed within six months.  However, most divorces take much longer than six months.  The six-month waiting period, before the termination of the marital status (freeing the spouses to remarry) begins on the date that the petition for dissolution is served on the responding party.  If the dissolution is not resolved before the six-month period, then one of the parties can seek a "bifurcation" of dissolution.  A bifurcation can be complicated due to certain protections and indemnifications required by the law.

9.  I can save money, and the trouble of my spouse contesting the divorce, by getting divorced in any state or a foreign country.

    

9.  Not necessarily true.  A divorce must be valid in the state or the country from which it is obtained.  Normally, before a divorce is granted, there are residency requirements (that you live in that state or country for a specific period of time).  Moving out of state or out of country may be prevent any trouble or expense of a contested divorce, especially if, during the residency requirement, your spouse files a divorce case in California.

10.  Child custody is always awarded to mothers, and fathers always have to pay child support.

10.  Not necessarily true.  Although there is a strong preference that mothers be given child custody, that is not always the case.  Many courts are awarding joint physical custody where both parents are equally sharing custody.  In situations where the mother may not be the best caregiver, courts will award custody to the father.  As for child support, each parent has a legal obligation to support their children.  In the majority of situations, fathers are ordered to pay child support.  But it is dependent on the situation.  If the mother has a substantially larager income or has more assets, she may be obligated to pay the father child support.


This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Artiano & Associates
A Professional Corporation
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