The Truth About Common Divorce Myths
Divorce can be an overwhelming legal process and an emotional experience. Most divorce litigants are unfamiliar with the process, and this can make it all the more confusing and stressful. By learning more about what will – and won’t – happen, separating spouses can maintain better control of their legal interests throughout the process. Here are some of the common myths about divorce:
Mothers Get Preference in Child Custody
Child custody law has an ugly history of preferring one parent over another simply based on the parents’ gender. In the not-so-distant past, fathers were always awarded custody of their children. This was a matter of property rights. Both wife and children were considered the legal property of the husband and father. In the early twentieth century, the courts modified this presumption into a rule that unfairly went the opposite way. The “tender years presumption” held that young children needed a mother more than a father. Custody of young children was, therefore, presumed to be awarded to the mother.
Luckily, the law has since evolved to realize that neither parent should have a custody preference based on their gender. Many states have explicitly written this rule into child custody statutes. For example, the California child custody statutes also recognize this rule at Section 3040 of the Family Code. Instead, the court must examine a series of factors in order to determine which custody arrangements are in the best interest of the child.
Older Children Can Choose Which Parent to Live With
The law has also evolved to recognize that children – especially children who are older or more mature – may have a valid opinion about custody orders. Some states actually allow a child to choose which parent to live with. California is not one of those states. This does not, however, mean that a child’s opinion is discounted entirely. Rather, Section 3042 directs family court judges to consider a child’s wishes when granting or modifying child custody orders. The child must be “of sufficient age and capacity to inform an intelligent preference”. This means that the court may determine how much weight to give to a child’s opinion. If, for example, a small child prefers the parent who feeds him sweets, this opinion will not be given as much weight as that of a teenager who prefers the parent who is better able to foster her intellectual and emotional development.
Men Are Not Awarded Spousal Support
Like child custody laws, alimony has undergone many changes in United States law. In the past, it was often used as a way to provide support for a housewife who had few career prospects after a divorce and consequently had to be supported financially by her former husband. These outdated gender roles are becoming less and less relevant in today’s society. As a result, alimony laws are being revised across the country. More and more states are limiting the amount and duration of alimony awards in order to promote financial independence among all divorce litigants.
Alimony can still be awarded to spouses of either gender in a California divorce. “Spousal support” (as it is called in the Family Code) is based on one spouse’s need for financial support and the other spouse’s ability to pay it. The court will examine many different factors to determine whether these conditions are met. If a litigant is eligible for an award of spousal support, the court must determine the amount to be paid, and how long the award should continue. This analysis often focuses on how long it will take the receiving spouse to become financially independent. If, for example, the recipient is going back to school or getting a certification in order to increase his or her earning capacity, this is a tangible goal with a set deadline.
As you can see, the conditions for spousal support are gender-neutral. A person can be eligible to receive spousal support from either a wife or a husband. This flexibility adapts to changes in society and the law. It also promotes fairness by ignoring outdated gender roles.
Razai & Nefulda is a legal practice devoted exclusively to family law. Call (714) 663-9900 to schedule a consultation in our Orange office, or (949) 222-5380 for our Newport Beach office.