Five Common Misconceptions of Clients in Family Law Matters: Part II

Last week’s blog post identified 5 common misconceptions that family law clients often hold.  This week’s post sets forth 5 more misconceptions along with examples of how to dispel some, if not all, of these misconceptions.

1.  Divorce Means Avoiding the Need to Co-Parent.  Just the opposite is true.

The law requires parents to cooperate, communicate, and to co-parent in the interest of their children.  This is ironic considering that many marriages break up because of disagreements about how to raise children.  Often parents are required to participate in parenting classes, co-parenting counseling, and individual counseling to support them in this important post-divorce aspect of their children’s lives.

2.   The Income Earned by One Spouse is Not the Property of the Other Spouse.

In California, without the benefit of a prenuptial agreement, all income earned during the marriage is community property, and all property acquired with that income will be divided equally upon divorce.  Many clients believe that because they earned the money, both the money itself and assets acquired with that money belong to them, to the exclusion of the other spouse.  This is simply not the law.

3.   Moving Out of the House Will Harm a Person’s Legal Rights to the House.

The sheer act of moving out of the family residence does not change a person’s legal rights to ownership.  However, moving out of the residence before the divorce is resolved may make it difficult to move back in (if ever) when the other spouse also wishes to keep the house in the divorce settlement.  Also, moving out of the residence before the divorce is resolved may create a disincentive for the spouse remaining in the house to move the case forward expeditiously.  Cases move much faster when both spouses remain living in the residence under equally uncomfortable circumstances.  Of course, if domestic violence exists or is threatened, obtaining restraining orders to remove the aggressor is necessary. The alternative is for the victim to immediately leave the residence, because personal safety should never be compromised as part of a strategy for the ultimate disposition of the house or any other asset.

4.   A Divorce Attorney is a Magician.  No attorney is a magician or a miracle worker.

Family law cases are complex, and often there is no clear answer to issues because so much of the law allows a judge broad discretion in making decisions.  The best family law attorneys are those who provide realistic advice and are brutally honest with their clients about the possible success on issues presented in the case.

5.  Anyone Can Handle Their Own Divorce.

Many people believe they can handle their own divorce with the aid of information on the Internet.  Do-it-yourself divorce does not save money—it is ultimately more expensive and time-consuming, if not outright self-defeating.  Limited financial resources sometimes make obtaining legal advice difficult but never impossible.  There are many ways even someone of modest financial means can seek legal advice.  Family law matters are complex.  Having the guidance of a family law attorney will not only make the legal process easier, but will also help to prevent problems after the divorce.  Most divorces present complex tax issues, future retirement issues, and impact future requests concerning custody and support orders.  There is simply no substitute for specific legal advice addressing a client’s specific situation. Many lawyers offer unbundled legal services to help close the gap between a client’s need for even limited legal advice and their ability to pay.

Now that you know a total of 10 common misconceptions, here are some examples of how  to dispel some of these misconceptions:

  • Work with a lawyer who is comfortable dispensing honest and straightforward advice.
  • A trusted relationship between the lawyer and the client is key.  When there is trust, the client will usually let the lawyer guide him or her through the process.  Viewing the attorney – client relationship as a team will help manage expectations and any misconceptions held by the client.
  • Ask questions.  If information is learned from friends, family, the internet, books or from other resources which gives rise to questions or concerns, it is critical the question or concern be brought to the lawyer’s attention.  There is a lot of mis-information in the world and every family case is different, so generalizations are the last thing a client should do.  Find out if the concern applies to your case and if so, why and if not, ask why.  The sooner the information or concern can be confirmed or denied the better so the client can move forth to face those issues which impact their case.

Avoiding misconceptions does not mean the client must have legal knowledge.  It means they should consult with the person who does have such knowledge—their lawyer.  The attorney-client relationship should be a partnership, as previously noted, and the more knowledge a client has about an issue involved in their legal matter, the better the partnership.  A client who is better informed and better able to participate with their lawyer as a partner acting on knowledge, not misconceptions, will achieve the best outcome possible when the unfortunate event of divorce occurs.