California Divorce Myths – Volume 1

Misconceptions regarding family law and what happens when you get divorced or file a custody action abound. Often, when reviewing a case with a new client or casually discussing divorce issues, several myths come up repeatedly that should be put to rest.

MYTH: “Premarital agreements are only for very wealthy people”

There is a common refrain echoed by local family law practitioners – when you get married in California, everyone enters into a premarital agreement whether they know it or not, it’s called the California Family Code.

Under the code, the legislature has determined default rules that will apply to your assets and debts and support orders upon dissolution of marriage if decided by a judge. Perhaps the most widely known default rule in California is that property acquired by a married person during the marriage may be characterized as community property, and therefore, is subject to division upon dissolution.

For many people, especially those who own real property or a business prior to marriage, they might find that they do not like the default rules, and do not want the default rules to apply in their case. A couple may want to come to an agreement in advance about how spousal support will be calculated and for how long, or determine whether or not the community will develop an interest in one party’s separate property home or business over time.

These considerations are not only relevant to very wealthy people. At the very least, anyone and everyone who is getting married should understand how the Family Code will impact their property and income upon divorce, and then decide if those default rules are right for them and their future spouse.

MYTH: “If he/she cheated, then they can’t get spousal support”

California is a “no fault” divorce state. Accordingly, the court will not consider fault, including cheating or infidelity, when calculating spousal support. This is a bright-line rule, meaning evens scoundrels, if otherwise entitled to spousal support, will still receive it under the California Family Code.

MYTH: “If we have 50-50 custody, then I don’t have to pay child support”

I often hear a variation on this myth, “my ex just wants 50-50 custody so he/she doesn’t have to pay me any child support,” or “if my ex and I share 50-50 custody, then I don’t have to pay him/her anything, right?”

Guideline child support in California is calculated with a software program called DissoMaster. The DissoMaster applies a codified mathematical formula to a number of inputs. The most significant inputs are number of children, custodial timeshare, and gross income of each party. California Family Code Section 4057(a) provides that the guideline child support calculated by the DissoMaster is “presumed to be the correct amount of child support to be ordered.”

Although custodial timeshare does factor into the DissoMaster calculation, in my experience, 50-50 custody rarely results in a “zero dollar” child support obligation. Indeed, even in cases where one parent has more custody time, if that parent earns significantly more income, the DissoMaster will still calculate a support payment to the other parent with less custodial time.

Another factor that will impact the child support calculation is mandatory add-ons. Generally, if a parent requires childcare in order to work or attend school, the other parent must contribute to those childcare costs in addition to the baseline support amount.

Bottom line, custody timeshare is a significant factor in calculating child support using the DissoMaster software, albeit one of many factors. However, there is no such rule that 50-50 custody means no child support payments, regardless of gross income, childcare costs, and other factors.

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