They say there is no such thing as a simple or easy divorce, and we have to admit this is mostly true. However, when it comes to mediation vs. the courtroom, we can honestly say that the courtroom should be avoided at all costs whenever possible.
As a Bay Area family lawyer with more than 40 years of experience, I’ve seen over and over again how these 5 myths of divorce litigation lead people to make the wrong decisions.
Divorce Litigation Myths
I want to share these myths so individuals and couples have the information they need to make the right choice for how to proceed with a divorce.
Myth 1: You have to go to court to get divorced
This is not true at all. Couples who are mostly amicable and are in complete agreement around how assets should be divided, child custody and visitation agreements, and so on can often move through the paperwork with the help of a paralegal or a single consultation in a lawyers office. Others are able to more calmly and fairly navigate their divorce through mediation channels.
You only need to go to court if you are in dispute and cannot come to an agreement on a final divorce agreement/settlement.
Myth 2: You don’t need a lawyer in the courtroom
This is legally true, but it is absolutely one of the worst mistakes a person can make. While individuals are technically “allowed” to represent themselves in court, it is never a good idea. First and foremost, a single error on the legal paperwork, missing a filing deadline, etc., can give the upper hand to the other side and cause you to look irresponsible and unprofessional.
The legal process is not as straightforward as it should be, and legalese on court documents can be overwhelming – even the most educated individuals. In my post, 8 Reasons You Shouldn’t Divorce Without A Lawyer, some of my top reasons include:
- You aren’t “fluent” in divorce law
- The copious amount of paperwork is challenging
- Your version of equal may not be as equal as you think
- It’s an emotional roller coaster
The emotional point is not one to overlook. I’ve had clients who cry every time in my office appear as knife-edged stoics in court, and I’ve had men who never showed any signs of emotional regret fall apart in the middle of divorce litigation proceedings. You do not know what you will feel or experience until you are in the courtroom, which means you need a legal professional standing by your side to keep things professional, organized, and moving forward.
Myth 3: You’ll come out on top because your spouse cheated on you
California is a no-fault divorce state. There are only two grounds by which residents of California can file for divorce. The first is “irreconcilable differences that have caused an irremediable breakdown of the marriage,” and the second is, “a permanent legal incapacity to make decisions.” In almost all cases, divorces are filed under the former, “irreconcilable differences…”
This means that shy of any illegal activities (domestic abuse, child abuse, etc.), the judge cannot factor your spouse’s infidelity or other unsavory behaviors into the proceedings. The fact that your spouse had an affair does not give you a leg up in any way. This is why working with a lawyer is the safest way to ensure you keep things in the black-and-white realm of the divorce litigation arena, even when you are understandably floundering in the shades of gray.
That said, your spouse’s poor decision making in regards to alcoholism, drug use, a revolving door of sexual partners in the home while your child(ren) is present, etc., can affect the terms of your child custody and visitation agreement. As a result, your lawyer can help you attain the safest and most healthy outcomes for your children and the family in ways that representing yourself may not achieve.
Myth 4: The wife always gets alimony
This is not true at all anymore. In fact, in marriages where both parties are capable wage earners, without any major discrepancies in income, alimony is a far less common court order in California these days.
If there are major discrepancies or the husband has been the at-home care provider for the family, there is a good chance that the husband will be paid alimony for a set period of time until he has time to find suitable employment and the children have time to adjust. Husbands who aren’t aware of that often make the mistake of not pursuing it, which makes it worth your while to at least consult with an attorney before you head into the courtroom.
Myth 5: Everything will be split 50/50 or by who is on title
This is not true either. People often confuse the idea that California is a “community property” state with the idea that everything is split 50/50. They also mistakenly believe that if their name is on the title of a car, toy, property, etc., then it is theirs. Both of these beliefs are false.
Community property only applies to assets that were acquired during the marriage but excludes anything that was an inheritance or gift. So, your husband’s family dining room table is his if he wants it, even if you’ve used it throughout your entire marriage. If your wife’s name is on a car title, but the car was purchased during the marriage – it is viewed as joint property from the court’s perspective. Equally available to be divided are retirement accounts, investments, financial accounts, and any debts you’ve accumulated – including credit card debt charged on your spouse’s card.
Also, your spouse could have hidden assets or assets s/he’s secretly squirreled away to hide them from you. Legal experts have a network of professionals to track these things down and bring them to light. Your courtroom litigated divorce could shine a light on things you never knew about, whereas a family law consultation and mediation sessions can ensure everything is brought to the table and fairly distributed with far less stress and without any of the drama.
Let Us Help You
Are you thinking divorce litigation in the courtroom is your only option? Give me a call at the Law Offices of Gerard A. Falzone, (510) 521-9500 or (415) 482-7800 for a free phone consultation. We work for our clients every day to minimize the financial, emotional, and energetic costs associated with divorce proceedings, and we’ll do the same for you.