Five Common Misconceptions of Clients in Family Law Matters: Part I

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A call to a lawyer is never easy, and it also involves definite expense.  Attorneys’ fees in family law matters (divorce, child custody, child, and spousal support) add up fast—sometimes faster than fees in other areas of the law—because these cases are emotional for the clients, who make many demands on and need much support from their attorney.  This is only natural, because there is a lot at stake, such as each person’s financial future and the future of their children.

Emotions often run high when people are arguing over money, property, and children.  They frequently do not trust each other and are working hard to advance their own interests in their legal matter.  However, it is important that cooler heads prevail in order to avoid misconceptions that add difficulty and expense to the dispute.  Often, a client may take satisfaction in acting on emotion without adequate thought or analysis, but misconceptions can lead to paying a very high price later.  While this list is not comprehensive, it does represent some of the most common misconceptions.

1.  Filing a Divorce or Legal Separation Will Make a Spouse Work Harder on the Marriage.

Many clients believe this to be the case.   Rarely, if ever, have I seen it to hold true.  Clients must understand that if they start a legal proceeding, they must be ready to complete it.  There is rarely any going back from a divorce filing. It is a bell which usually cannot be unrung.

2.  Mothers Are Always Awarded Primary Custody of The Children.

The court is required to make custody decisions which are in the best interest of the child.  Judges believe in stability and continuity for children.  Therefore, it is the parent who primarily cared for the children during the marriage who is most likely to receive the initial award of primary physical custody.  Because many families are structured in traditional roles, with the mother being the primary caregiver, the mother often is awarded primary physical custody.  If the father can demonstrate his role as the primary caregiver, then he is most likely the parent to be awarded primary physical custody. Proper childcare, not gender, is the court’s top concern.

3.  The Wife Never Has to Pay Spousal Support (Alimony) to the Husband.

The laws on support are gender-neutral and are guided by the relative incomes of the parties and their respective financial status in the marriage.  Therefore, if the wife was the breadwinner in the marriage, then she is the spouse most exposed to paying support.  Although the pendulum has shifted where women can be the breadwinner in the family, it seems the old societal norms die hard when the wife is told she might pay support to her husband.

4.  The Primary Custodial Parent Does Not Have to Work.

In California, both parents are expected to contribute to the financial support of the children, consistent with the children’s best interest.  Therefore, especially in these difficult economic times, it is not uncommon for a custodial parent to be required to re-enter the workforce to contribute to the household’s financial needs.    While there may be a timing issue as to when the primary custodial parent may need to work, it is rarely a question of if the primary custodial parent will be required to return to work.

5.  Both Parties Will Have the Same Standard of Living After Divorce as They Had While Married.

If the total income available to either party does not increase after divorce, then both parties will likely have to reduce their standard of living.  Simple math demonstrates that the same pot of money which supported one household in a particular standard of living cannot support two separate households at that same standard.

Next week’s blog post will reveal another 5 common misconceptions and how some of these misconceptions can be dispelled.

Published In: Family Law Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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