Dissolution Of Marriage: Important Factors To Consider


When a marriage comes to an end, many people either fail to seek legal advise and proceed blindly or rely on the well meant but erroneous advise of friends and family, thereby unknowingly leaving themselves open to consequences that could be avoided by seeking advise from someone who knows the law.


A good example of erroneous common knowledge is the belief that the U.S. divorce rate is 50% to75%. It would probably surprise most to know that actual statistics reflect a divorce rate of approximately 43%. Clearly, this is a far cry from 75% and significantly lower than 50%.


Another common mis-perception is that when one spouse commits adultery, the court will punish the other spouse by awarding a larger portion of the marital property to the other spouse or impose some other form of punishment. This is not the case. California is a no-fault state which means a divorce can be obtained without a showing of wrongdoing. Further, the courts do not impose any type of penalty for adultery and in fact, don’t want to hear about it, because it is simply not relevant to the disposition of property or any other issue in the case.


In the simplest terms, California law assumes that all assets acquired during marriage are community property meaning each spouse is the presumed owner of 50% of each such asset. Some examples are earned income and employee benefits (i.e., pension plans, vacation pay, etc.), real property (i.e., house, condo, etc.), and personal property (i.e., cars, furniture, etc.). However, as is the case with all things in life, there are many exceptions to this rule and many complexities that must be considered with far reaching and often unexpected effects.


Many people come to the legal system expecting the courts to rule in a manner resulting in a fair outcome. The problem is that the courts are bound by laws that have evolved by consideration of factors that are often obscure and appear to fall outside the common concept of fairness. For example, in dividing their property, many couples agree that one will take a house and the other will take a pension plan as an even exchange. In so doing, it would seem fair to expect that when the pension recipient retires, income received from that pension would be exempt from spousal support paid to the person who received the house. However, under California law, the court would have to consider the pension income if the pension recipient is obligated to pay spousal support to the recipient of the house. Therefore, the recipient of the house would, in effect, receive all of the house and some of the pension.


It is unlikely this result would be foreseen by someone who does not know the law and would likely be perceived as unfair. The law is full of examples like this one and could therefore be a hazardous trap to the unwary. Before entering an agreement that might result in an avoidable undesirable consequence, it is always best to seek legal advise before signing on the dotted line.

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