Debunking California’s Family Law Myths

February 2013Brochures

Domestic Violence requires violence: FALSE
Domestic violence can include conduct which is not necessarily violent such as harassment, stalking, threats of violence or placing someone in a circumstance where they fear for their safety. It could even include surveillance by a private investigator.

Premarital Agreements are hard to enforce: FALSE
If properly prepared with full financial disclosure and the right to consult with an attorney, premarital agreements are favored and are typically enforceable.

If you are not married but live together for ten years, you have a common law marriage: FALSE
Common law marriage does not exist in California.

If you sign a Premarital Agreement within seven days of the wedding, it is invalid: FALSE
The seven-day rule has nothing to do with when the wedding takes place. The seven-day rule requires a party to have a premarital agreement for at least seven days before they sign it. This is to provide time for individuals to obtain advice from an attorney.

The ten-year rule means if you are married for ten years or more, you must pay lifetime spousal support but if you are married less than ten years, you pay spousal support for half the length of the marriage: FALSE
Marriages of less than ten years are not considered “long-term marriages,” and it is expected that people will become self-supporting in a reasonable period of time presumed to be one-half the length of the marriage. This can be refuted, however. Courts can cut off spousal support rights for people who have been married for more than ten years and can extend spousal support rights for more than one-half the length of the marriage for people who have been married for less than ten years.

The parties are legally separated when one party files for divorce (or for legal separation): FALSE
The parties are not legally separated until the court issues a Judgment/Order for legal separation, based upon the parties’ mutual agreement or after a hearing on the issue of the date of separation. In the event of a hearing, the court will consider such factors as whether the parties continue to reside together, have marital relations, share joint finances, file joint tax returns and hold themselves out to others as though they are still a married couple.

If someone has assets, the other party does not have to pay their attorneys fees: FALSE
Having money or assets is not a bar to requesting attorney’s fees. The relative financial position of the parties and each party’s access to funds is considered. If the other party has far more income (after payment of support) or significantly more assets, they will have to contribute toward the other party’s attorney’s fees and costs.

If you acquire an asset during marriage in your own name, it is not community property: FALSE
There is a presumption that assets acquired during marriage are community property. This presumption can be refuted by evidence that the asset was acquired from a separate property asset owned before the marriage or from a gift or inheritance before, during or after the marriage.

You can provide for child support and child custody in premarital agreements: FALSE
Provisions regarding child support and child custody in premarital agreements are void as a matter of public policy.

You can’t waive or limit spousal support in premarital agreements: FALSE
Spousal support waivers or limitations in premarital agreements do not violate public policy. These provisions are looked at by courts at the time of the enforcement of the provision/agreement to determine whether enforcement would be unconscionable (which term is undefined but clearly means something more than unfair).

If you cohabit but do not marry, you cannot be sued for financial support or property division: FALSE
Palimony lawsuits (otherwise known as a Marvin lawsuit named after the actor Lee Marvin), are permissible and permit someone to claim that there exists a verbal contract to pool assets and/or support the other party. Cohabitation Agreements are a great mechanism for prohibiting such a claim from being made.

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