Published Newspaper Article by Bradley McFadden
As an attorney practicing Family Law for 31 years I would like to let you know about some of the common misconceptions about Family Law in California. Back in the 50’s many of us that are old enough were watching Perry Mason, Divorce Court and other soap operas on television. The new generation are watching these reruns and some new television shows are still leading the viewer to believe the old law. For example, back in the 50’s and 60’s the Perry Mason show often stated that in order for someone to get a divorce he or she had to have the grounds referred to as “mental cruelty”. Meaning, one spouse had been unfaithful, or had stolen money or committed violence against the other or some serious wrong against the other. Some clients I talk to today still believe this has to be shown in order to get a divorce in California. Today divorces are no fault divorces. Fault type of divorces were repealed and the law changed around 1970. Today, you do not have to show fault of the other party to get a divorce. You can simply allege irreconcilable differences. Irreconcilable differences could be you don’t like the color of your spouses socks. It really does not require any kind of showing and no courts that I know of have ever questioned somebody claiming irreconcilable differences in a divorce petition. Therefore, anyone after 1970 can file for divorce based upon irreconcilable differences and this will be enough to obtain a divorce with or without the other party’s agreement or consent.
With this brief introduction, I would like to explain some of the common misconceptions that the general public has regarding family law be it in a divorce setting, paternity setting, or other non martial relationship. The law generally applies the same to all such situations except with respect to spousal support and other issues like community property.
First misconception: If I leave my spouse or significant other first does this mean that I will be at fault and will lose custody and or my property or pay more money to the other person?
Answer: This in it of itself does not mean that you are at fault or that you will have to pay more money for support or get less property or less custody in your case. Of course each case hinges on its particular set of facts. For example, if you left your friend and/or spouse and had children in common and you disappeared for one year and never paid any support this would certainly work against you in attempting to get custody of your children. It does not mean that you are completely barred from getting custody and or visitation but you would have a difficult time in getting full custody. In any event, simply moving out of the house or leaving your spouse or significant other is not alone grounds to give you a disadvantage in court on your case. It could put you in a bad position if you leave your family residence providing the other party a better opportunity to obtain temporary physical custody or possession of the residence and/or any personal property therein. If you leave the children with the other party you could also be at a disadvantage in attempting to get full custody of your children at a later time.
The second misconception: If I file my case first do I have a better advantage in court?
Answer: No, however, you may if you file first in the court venue which may be more advantageous to your needs. In other words, as long as you file first in the venue of your choice you may have an advantage being in a district you or your attorney are better known rather than waiting for the other side to file in an area where his/her attorney is better known which could be very disadvantageous. Therefore, you need to talk to an attorney as soon as you can to determine whether you should file first or not.
The third misconception: If i have an affair with someone else does this mean that I can lose custody and or support from the other party.
Answer: Not necessarily. However, if you are living with a significant other that has criminal background of violence and drugs and is still involved with these types of activities around your children or other inappropriate and illegal activity this may work against you in keeping custody of your children. However, if your significant other is clean and is not involved in inappropriate or illegal behavior or conduct especially around your children and is non violent the likelihood is that your having an affair or being with someone should have no effect of any significance in your case regarding custody of your children. On the other hand regarding spousal support, especially spousal support, if you are married and you make very little income and the other side makes a lot of money and you move out and/or have another person live with you who is supporting you with money this could reduce or eliminate your need for spousal support and a court may deny it on those grounds. Regarding child support, living with another person does not usually affect significantly any kind of a child support award pursuant to the California guidelines.
The fourth misconception: If I am married to my spouse for three days or three weeks or even three months can I nullify my marriage based on the short duration of my marriage?
Answer: No. You can be married for 3 minutes and you still have to get a divorce unless you meet one of the following four requirements for nullity.
1. That you or your spouse was under the legal age to be married at the time you did get married.
2. You did not go through the bonafide legal procedures in order to obtain a marriage certificate and be legally married.
3. You were forced or coerced under duress, fraud or otherwise to marry your spouse
4. Either you or your spouse were seriously mentally ill or close to being insane and unable to understand what you were doing mentally when
If you do not meet one or these requirements (or others as may be specified in the codes or case law) with the credible evidence you will have to be divorced and not nullify. It does not matter how long you were married whether it is 3 seconds or 30 years.
These are just some of the misconceptions and realities of family law. Please call my office at (626) 858-1800 to schedule your consultation and discuss family law matters more in depth.
BANKRUPTCY, SHOULD I FILE?
Are your bills and debts becoming so unmanageable that you are unable to pay your debts as they become due? If this is the case you may want to consider talking to an attorney about filing a Chapter 7 bankruptcy. This article is regarding Chapter 7 bankruptcy which is different from Chapter 13 bankruptcy. Bankruptcy petitions are federal documents that are filed in the federal courts usually in the downtown Los Angeles area for those that live in Los Angeles County. In this article I will explain briefly the basics in filing a typical bankruptcy Chapter 7 case and the general requirements in order to qualify to file a Chapter bankruptcy and to discharge your debts through the United States Bankruptcy Court.
First of all a Chapter 7 bankruptcy is one of the chapters under the federal code which allows an individual or a married couple to file individually or jointly in order discharge or terminate your unsecured debts. Chapter 7 is a liquidation procedure where you discharge or terminate your liability to creditors for unsecured bills and debts. An unsecured debt is typically a Visa, Mastercard, general loan, contractual obligations and repossessed car bills for cars that have been repossessed and that have gone to sale. A secured debt is usually a mortgage securing the purchase of your residence or a contract from a car sales company which holds back as security the car itself as security for payment of the loan. Other examples of secured debts are buying appliances from Circuit City or other large items such as stereo’s, tv’s, that are secured by the agreement with the company so if you do not pay the debt they can come and take back the security name the car, tv or refrigerator. Therefore, it is deemed to be secured meaning that the creditor has a security interest that secures their rights to get at least the collateral or the item you purchased back from you if you do not pay for it. The unsecured debt has nothing secured and therefore there is nothing for the creditor to get from you except to sue you in court to get a judgment to try and collect money from you by wage garnishment or levy. A typical example would involve an individual or a married couple who earn between the two of them $3,000.00 per month take home pay from both their jobs. They typically may have a mortgage with a house at a typical value of $400,000.00 and a few cars, furniture, appliances, a couple of retirement plans