People generally start off a consultation with me about a divorce by asking, “What are my rights?” I’m eager to fight for you to get you your divorce rights. On the other hand, your “rights” are not as straightforward as you might expect. Please let me explain.
As far as I can remember, there isn’t much in California’s Divorce Law (the “Family Code”) exactly responsive to the question, “What are my divorce rights?” Most sections of the Code aren’t written that way. There is no definition of a “right” or “rights,” and your rights are seldom spelled out. Instead the sections usually state rules for the court to follow. Here’s an example, Family Code Section 2550: “. . . [T]he court shall . . . divide the community estate of the parties equally.” For you that rule translates into this: you have a right to half of the community property, subject to a multitude of factors permitting the court not to divide the community property equally.
In a few places, like the child custody definitions, rights are indeed explicitly stated, as in Family Code Section 3003: “ ‘Joint legal custody’ means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.” Nice, but not too helpful if Mom wants the kid to attend public school and Dad wants private school. If one of them doesn’t give in, a Judge will make the decision.
The definition of “Sole Legal Custody” in Section 3006 appears to be more helpful, but not by much: “ ‘Sole Legal Custody’ means that one parent shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.” Great. Mom has sole legal custody and exercises her right to send the kid to public school. So Dad goes to court and complains to the judge that the public school in question is a disaster, and that the best interests of the kid will only be served if the kid goes to private school. Oops. The Judge may agree with Dad, so again Mom’s “right” didn’t amount to a guarantee.
On the other hand, an attorney’s explanation of what might happen in a divorce has to start somewhere, and “What are my rights in a Divorce?” is probably as good a place as any. So, here’s how I might answer the question. Bear in mind what I said above – rights aren’t automatic.
1. You have the divorce right to have your spouse disclose all material facts and information regarding all assets and debts, both community and separate during your divorce.
2. You have the right to half of the community property.
3. You have the right to all of your separate property.
4. You have the right to parent your child, but the court may find it’s in the best interest of your child to limit that right.
5. You have the right to child support after your date of separation, if you have the lion’s share of time with the child and you are the low earner.
6. You have the right to spousal support after your date of separation for roughly half the length of your marriage, if you are the low earner by a significant margin.
When I tell you I will fight for your rights, I am talking about putting these rights into practice and enforcing them. That’s a complicated process in any contested divorce.
The level of complication, and the necessity of fighting for your rights, goes up as:
The level of complication and the intensity of fighting are usually at their highest for high net worth individuals, who have a business of their own, as well as other substantial assets, substantial income, and vacation homes. For example, valuing and dividing a thriving business owned by high net worth individuals is very difficult and acrimonious. On the other hand, the level of complication and the necessity of fighting should usually be much lower for people who are not self-employed, and who have moderate income and no significant assets, other than their home and perhaps one or more pension plans. However, if infidelity caused the divorce, the level of complication and the intensity of fighting will rise considerably in either case.
We will analyze your circumstances, help you understand how the law and the courts work, explain your rights, and fight for them on your behalf. Call our office and ask me for help.
San Diego Divorce Attorney Stanley D. Prowse welcomes your legal inquiries.