How To Avoid the Most Common Divorce Mistakes in California?
The good news is that California divorce rates are less than the national average; however, if you are reading this article, you are thinking about a divorce, or are going through a divorce. Most people separate from their spouse for a variety of reasons, including but not limited to, lack of commitment, infidelity, distance in the relationship/lack of physical intimacy, communication problems, domestic violence, verbal/physical/emotional abuse, realization that one’s spouse has different values/morals, substance abuse/alcohol addiction, absence of romantic intimacy/love, one partner not carrying their weight in the marriage, financial problems/debt, marrying too young, lack of shared interests/incompatibility between partners. Additionally, causes of divorce for married couples in their 50, 60s, and 70s are unique because of major life transitions that occur during this time. According to a U.S. Census Bureau survey, the top three reasons for divorces are incompatibility (43%), infidelity (28%), and money issues (22%).
The process of obtaining a divorce can seem complex and may be associated with many challenges, depending on your particular circumstances. While some spouses may be able to cooperate and reach an amicable solution very quickly, others divorce involve complicated financial and legal issues, an uncooperative spouse, continuous disputes – the outcome of which may affect the rest of their lives. Thus, preparing yourself to avoid some common mistakes is essential.
Here, we will discuss how spouses can avoid some common divorce mistakes in California. The article will apply some basic divorce and separation laws used in California. The structure of the article is as follows: a) the meaning of divorce, some of the most common causes, and introduce the laws that govern marriage and divorce; b) common mistakes and how to avoid them; and c) concluding comments.
Meaning of Divorce
Divorce, also known as “dissolution”, is the process through which the court ends (“dissolves”) a valid marriage, returning the parties to the status of “unmarried” and freeing them to remarry (Encyclopedia Britannica, n.d. para 1). It applies, in California, to marriages, domestic partnerships, and to civil unions performed in other states. Typically, the result of the dissolution is to release each party’s legal responsibilities and duties to the other, thus terminating the legal bond between couples. In California, there are many causes of divorce: infidelity, lack of commitment, communication problems and domestic violence, early and arranged marriages, financial factors, conflicts, alcohol, and substance abuse (Lowenstein, 2005, p. 155).
In the U.S., divorce laws differ according to states, which means that what is done or applicable in California may not be applicable in New Jersey and New York. In California, all legal issues surrounding divorce and separation are governed by the “California Family Code” (Crowley, 2021., par 1). Under California Family Code, there are three main ways to end a registered domestic partnership or marriage: legal separation, annulment, and divorce (Crowley, 2021., par 2: California Courts, n.d., par 1). Typically, legal separation under California Family Code does not dissolve a marriage like a divorce does but allows the court of law to decide vital issues such as child support, child custody, and property division. Family courts are also authorized to issue restraining orders for people who have been in family living environments.
In California, both spouses are not required to agree to a legal separation or dissolution. One partner can choose to end the marriage, even when the other partner is not willing to get the divorce. If one of the partners is not ready to take part in the divorce, the other partner will be able to get a “default” (failure to respond) and still finalize the case through a judgment. California, unlike other states, is a “no-fault” state, meaning that any of the spouses asking for a divorce does not need to prove that their partner did something wrong. (California Courts, n.d., par 2).
Why do Common Divorce Mistakes Occur?
In general, going through a divorce or separation is one of the most trying times in an individual’s life. Though separation may eventually lead to a promising future for the partners, the road leading to divorce is usually characterized by stress, emotional trauma, and devastation. Therefore, individuals seeking a divorce may unintentionally commit many mistakes. Thus, to reduce the troubles and reduce the possibility of unfavorable outcomes, one needs to be careful and find help from the experts. This section will discuss some of the most common mistakes that people going through a divorce can commit and how they can be avoided.
Most Common Mistake: Emotions prevailing over rational thinking
More often than not, people going through a divorce are prone to making decisions based on their emotions. Typically, divorce is a serious issue, and it tends to bring up complex issues close to one’s heart, including disputes about children, home, money, and sentimental assets. However, people going through a divorce are usually advised against giving in too much of their emotions. It is common for partners to have strong feelings; however, giving in to all your feelings may easily cause an individual going through a divorce to fight for things that they did not want, or when the money and emotions invested in the litigation is not worth the outcome. Intense emotions may make the divorce process longer and more expensive than expected, increasing the overall cost in terms of time, money, and emotional exhaustion.
In some cases, when people going through a divorce allow emotions to cloud their judgment, the court may allow the pace of the case to slow down so that the parties can let more objectivity prevail over emotions. Emotions in a divorce are often exacerbated when a party uses unhealthy stress relievers such as abusing alcohol and illegal substances. These unhealthy behaviors and intense feelings such as fear and uncertainty often derail individual rational thinking.
It is very important for individuals contemplating, or going through, a divorce to build their support system. This system can involve friends, supportive family, medical intervention, and other healthy stress management practices like yoga, meditation, and regular exercise.
Individuals going through a divorce are usually expected to be in their sober state of mind while making decisions because such choices can impact the rest of their lives and that of their children. Children are more likely to be affected by the emotion associated with divorce. (Shimkowski and Ledbetter, 2018, p. 186). Marriage and divorce courts in California require that parents cooperate and put their children’s needs first, rather than ahead of their own. In most cases, decisions that negatively affect your child or children or which make the dissolution process harder on them and maybe used against you by your spouse and the court. Thus, parents must find ways to handle their emotions during the process, outside of the presence of the children. This expectation is very difficult for many parents; but, nonetheless, is the court’s expectation.
The age of social media and immediate responses
One of the best rules for divorcing people is to adopt positive strategies to deal with the stressors of divorce. Another common mistake is to let emotions rule one’s responses to a spouse’s communications, which are often very upsetting. It is critical that one should think before acting, and this is an essential strategy for responding to one’s spouse or an attorney. For example:
- avoid immediately responding to emotional text messages and emails;
- avoid confronting your spouse when you are upset (particularly in writing);
- avoid expressing pain or frustration in a way that involves the children, or within their hearing or presence;
- responding before gathering all important information; and,
- above all, remember that every text and written word, and phone call, may well end up being read (or heard) by a judge.
Other Common Divorce Mistakes
Being Violent and Abusive
People going through a divorce should avoid being violent and abusive to their partners. “Domestic Violence” in California including “disturbing the peace” and “free will” of a partner or spouse by sending threatening or abusive text messages or emails. They should avoid making negative comments in their children’s presence. In California, if one engages in these behaviors, the abusive person may end up with restraining orders issued against them, which may limit or prevent time with children. By definition, a restraining order is a court order that restrains a person from doing some activities to protect others. In California, if a person gets a restraining order due to violence, the order may include an award of temporary custody of the children to the other spouse; and, if proven at trial, can result in a legal presumption against custody of children by the abusive party.
The court assumes that it is in the child’s best interest to be in a situation where there is no violence. To protect the children, the Court may prevent the abused person from knowing the location of the children. Specifically, “[t]he court shall order that any party enjoined according to an order issued under this part be prohibited from taking any action to obtain the address or location of a protected party or a protected party’s family members, caretakers, or guardian unless there is good cause not to make that order” (Snape, 2017, P. 259).
People going through a divorce can avoid the possibility of a restraining order in the following ways:
- avoid engaging in any form of violence and verbal/emotional abuse whatsoever – think before writing or speaking!
- avoid posting sensitive information on social media platforms – remember, your common friends have access to these posts.
- Know that social media posts and text messages are the most common forms of evidence in divorce and restraining order hearings.
Failing to identify and document your community (marital/joint) and separate (individual) property before leaving the common residence
Being unaware of assets, debts, and finances can be a major problem in a divorce. It is easy for your spouse to take advantage of you while settling the financial issues if they oversaw all the financial decisions in the household. California is a “community property state,”; meaning that everything that spouses and domestic partners and registered domestic partners purchased or earned while in the marriage belongs to both parties (Wang, 2018: California Courts, n.d.). Thus, all assets acquired during a marriage are known as “community assets”, which are all subject to distribution between partners through the divorce. In other words, both spouses own half of what they acquired together (Goldberg, 2006, p. 486). In addition, the idea of equal ownership as stated under community properties also apply to debt acquired by the partners. This means that through the divorce, both partners will be assigned accumulated community debt equally, even if one person borrowed it. These debts include all the unpaid balances, home mortgages, and car loans.
On the other hand, all assets acquired before marriage, and after separation, are considered separate property and they are not subjected to equal division. (California Courts, n.d.). In California, gifts and inheritance to domestic partners or spouses during domestic partnership or marriage are also categorized under separate property (California Courts, n.d.). Profits, rents, and other money that a person earned before marrying, or after separation, are considered separate property.
Failing to identify and document your community and separate property may disadvantage that party during the divorce. To avoid this problem, people going through a divorce and those in marriage must ensure that they are well informed about the financial matters of the household. Those seeking a divorce should also document all their separate assets to avoid future misunderstandings. These separate assets and cash are yours to keep, and thus failing to identify the individual or separate assets can lead to severe problems during the divorce process. If you suspect that your partner may be seeking a divorce, it is essential to get all the information concerning the family assets and cash as soon as possible. Make copies of vital financial information, including account statements (such as retirement, savings, and brokerage) and other essential data relating to your marital status. If you suspect that your partner may liquidate or transfer or sell the assets without your consent, you should notify the financial institution in charge, or file for divorce and serve the institution with notice. Additionally, the service of a divorce Petition puts into effect certain restrains each party’s freedom to dispose of assets, change insurance policies, or to take other actions to cause harm to the other spouse.
The issue of commingling (mixing) separate and marital assets is also very common. Usually, commingling occurs when spouses or domestic partners use separate assets to buy joint/marital property. The most common example is when one spouse uses pre-marriage income to pay for an asset (like a car) purchased during the marriage. In these circumstances, it can be tough to determine the original owner, particularly when the transaction took place several years prior to separation. Thus, having all the documents and information in place can help to prevent misunderstanding before dissolution, or to help resolve disputes during a dissolution.
Failing to Obtain a Valid Marriage Certificate
This is another common mistake that most young people are committing. Though most states in the U.S. recognize common law marriage, California does not. (Goldberg, 2006, p. 485). This means that unmarried, but cohabitating, couples are not entitled to the same benefits as married couples, or registered domestic partners. Though this may seem strange, it only simplifies that process of divorce for California citizens. Since common law marriage does not apply in California, people living together don’t qualify for a divorce, and they can separate without any legal actions. Laws of equal division and community properties also do not apply to this group of people since no divorce or legal action occurs.
To avoid this problem, people should consider getting married and obtaining a valid marriage certificate. This is important to clarify rights to assets, responsibilities for debts, and rights to custody of children.
Rushing the Divorce Process To Get Over It and Save Money
The divorce process is a difficult transition, and in many cases, the individuals involved are eager to get through the process and end their marriage. Often, this causes couples to enter into a marital settlement agreement without thinking things through. While it is understandable that people may rush the divorce process to quickly end the marriage and save money, this may not be the right thing to do because understanding the entire marital estate, one’s rights, negotiating terms under the law, and finalizing paperwork takes a lot of time. Thus, couples going through a divorce must understand that it is a process that cannot be properly done in a single day—rushing the process may lead to problems that may result in an unfair settlement, or cause unforeseen impacts on either the parties or the children.
Spouses and domestic partners going through a divorce are usually required by the court to work out a settlement that is fair under the law to both spouses/partners. Understanding, and following, the law is essential because some details in a Judgment are hard to change once the divorce is over, especially those concerning properties or assets. Reviewing the terms and conditions of your proposed Judgment with an experienced attorney is essential to your understanding of the law and the terms of your Judgment before it is submitted to the court.
Not Following or Ignoring The Court Orders
People going through a divorce are expected to respect the orders given by the court. One needs to understand that the power assigned to the court to make orders is the same power assigned to the court to enforce orders. Stated another way – judges do not appreciate a party who disrespects the court’s orders. This is particularly true for orders affecting support of the family (child and spousal support) or the children, such as interfering with the other parent’s custodial time.
Failing to comply with the court order is punishable in several ways. First, the court may hold the violator in “contempt”, which can result in civil or criminal penalties, including time in jail, and/or penalties (called “sanctions”) payable to the court, the other party, or his/her attorney. When the court makes rulings concerning child support, spousal support, division of debts and assets, and custody, all the individuals involved are expected to follow and obey the orders. If you feel that the existing orders are unfair, or you cannot comply for various reasons, it is essential to use the right channel to address the problem.
Not Understanding Your Current Financial Position and Post-separation Budget
Divorcing couples often underestimate the cost of operating two households on the same resources as the prior household. “Men are often seen as economic winners in a separation scenario in which material resources and financial obligations are unequally distributed between the two ex-partners.” (McManus and DiPrete, 2001, p. 247).
This means that the lower wage-earner is more likely to suffer financial stressors following a separation, especially when that parent is likely to have responsibility for taking care of minor children. Thus, it is particularly important for women to understand the family’s financial position throughout the marriage, as well as the post-separation budget. Whenever possible, it is best to understand the value of current assets and financial resources so that both parties can create a financial budget and plan before moving forward with a divorce. Financial planning and budgeting assistance from professionals, and legal advice from an attorney about issues like liquid assets and available income, are essential in assisting individuals transition out of married life.
To Sum It Up
Ending a legal relationship is one of the major life decisions one can make, often changes the course of an individual’s life. Most people believe that divorce is a choice made by two people. However, it is not a requirement for both spouses to agree to end the union in California. One partner can choose to end the marriage, even when the other partner is not willing to get the divorce. If one of the partners is not ready to take part in the divorce, the proceeding will be finalized anyway, perhaps to the defaulting party’s detriment. This is particularly true since California is a “no-fault” state which means that neither party needs to prove to the court the reason for the divorce, or that the other spouse/partner engaged in misconduct.
The divorce process often involves uncertainty, stress, and intense emotions, as the parties transition to a new way of life. As a result of these issues, individuals going through a divorce may easily make mistakes, particularly not understanding the gravity of consequences associated with some mistakes. To reduce the potential of unfavorable outcomes, one needs to be careful and make the required preparation by seeking out the support of loved ones, medical intervention through therapy, and by utilizing healthy methods of stress management.
The risks for these mistakes usually exist in every stage of the marriage and separation process, affecting all significant aspects of individual life. Parents need to be prepared to put their children’s needs first; or, instead of their own interests, because this perspective is expected by the courts.
It is also essential to note that the divorce case often requires the presence and guidance of an experienced and well-trained divorce attorney, who is aligned with the client’s focus on the outcome. Be sure to interview more than one attorney to ensure that the attorney’s approach is aligned with your budget and desired approach.
References
Berger, Moriel, 2021. “Causes for Divorce: 13 of the Most Common Reasons”. Retrieved from isovereasy.com on September 1, 2021.
California Family Code section 6320.
California Family Code section 3044.
California Courts., n.d. Property and debt in a divorce or legal separation. Retrieved August 29, 2021, from https://www.courts.ca.gov/1039.htm
California Courts., n.d. Divorce or Separation. California Courts: Judicial Branch of California.
https://www.courts.ca.gov/selfhelp-divorce.htm?rdeLocaleAttr=en
Crowley, J., 2021. Divorce laws in California. Survive Divorce. Retrieved August on 28, 2021, from https://www.survivedivorce.com/divorce-laws-in-california
Encyclopedia Britannica., n.d. Divorce. https://www.britannica.com/topic/divorce
Goldberg, C.K., 2006. The Schemes of Adventuresses: The Abolition and Revival of Common-Law Marriage. Wm. & Mary J. Women & L., 13, p.483.
Lowenstein, L.F., 2005. Causes and associated features of divorce as seen by recent research. Journal of Divorce & Remarriage, 42(3-4), pp.153-171.
McManus, P.A., and DiPrete, T.A., 2001. Losers and winners: The financial consequences of separation and divorce for men. American sociological review, pp.246-268.
Shaw, Gabi., 2019. 11 Most Common Reasons for Divorce (Ranked). Retrieved from insider.com on September 1, 2011.
Shimkowski, J.R. and Ledbetter, A.M., 2018. Parental divorce disclosures, young adults’ emotion regulation strategies, and feeling caught. Journal of Family Communication, 18(3), pp.185-201.
Snape, J., 2017. California Labor Code 2017. Lulu. com.
Wang, J., 2018. California family code section 760 — blog | Los Angeles estate planning lawyers. https://joshwanglaw.com/blog/tag/California+Family+Code+Section+760