Divorce Considerations for Men
Sept. 30, 2022
Entering divorce proceedings, many men – if not most – feel the process is against them, and the female spouse will walk away with most of the assets, along with the house and kids.
California, however, is one of a few states that relies on the legal principle of community property when a divorce takes place. This means that all assets – and debts – acquired during the time of marriage are equally shared and owned by both spouses. Thus, either spouse will receive half the value of all assets – minus debts – when divorcing.
In other words, in simple dollar-and-cents calculations, neither side in a divorce in California has the odds stacked in their favor. Of course, other considerations come into play, such as spousal or child support, but the bottom line is an equal distribution of assets, in value if not in actual distribution.
If you’re a male who is considering divorce or has already been served papers in or around Ontario or Riverside, California, contact me at the Law Office of Shelly Jean John. I am a family law attorney serving Southern California with an abundance of experience looking out for the rights and interests of those going through a divorce. I proudly serve clients throughout the counties of San Bernardino and Riverside.
Divorce in California
The general basis for divorce in California has been reduced to the simple legal equation of irreconcilable differences. One other ground for divorce listed in the Annotated California Family Code is “permanent legal incapacity to make decisions.” This involves psychiatric or medical evidence that the spouse cannot make decisions.
Though a divorce must be finalized through a court order, the couple can choose between an uncontested and a contested divorce. In an uncontested divorce, the spouses agree on all details of the split – assets, children, child, or spousal support – and present it to the court for approval. In a contested divorce, the two spouses and their attorneys go to court with a judge making the final decision on who gets what.
Division of Assets
Anything acquired during the time of marriage, whether an asset or a debt, by either spouse becomes community property. Separate property, not subject to division during divorce, is anything either spouse acquired before marriage or during marriage through inheritance or a gift.
Separate property, however, can become “commingled” if the owner mixes that property with community property. For instance, one spouse owns a rental unit before marriage but after marriage uses joint funds for repairs and upkeep of the unit. The separate property can then become marital property in whole or in part.
The time of marriage begins with the wedding vows and ends when the spouses are separated, though separation must usually mean more than just moving out. There must be a signal that doing so means an end to the marriage.
As mentioned earlier, the division of community property is based on the cash value of the assets (minus debt obligations), not necessarily on the assets themselves. If Spouse A gets the house worth $400,000, then Spouse B can get to retain other assets worth $400,000, such as cash, investments, or other real property.
Support and Parenting Plans
Again, the issues of who gets custody of the children – one spouse or both – and who gets parenting time rights can be decided among the spouses in an uncontested divorce. The same holds for any spousal or child support payments to be included in the divorce.
If matters are left to the court, judges generally rely on legal precedent and the underlying principle that each spouse should be allowed to maintain the standard of living enjoyed while married, even if just for a transition period of a few or even several years. The earning potential of each spouse, along with their education, job training, and marketing skills, are taken into consideration.
It is commonly believed that alimony is for women who stay home to care for the children. While this is a consideration, a male spouse is just as eligible for alimony or spousal support as a female spouse under the principle that each spouse should be able to continue to enjoy the standard of living enjoyed during the marriage.
When it comes to who gets custody of the children, the court will decide based on the “best interest” of the children. California law does not show preference to either parent, male or female, but mothers are historically granted custody more than fathers since they are often more likely to be the primary caretaker of the children than the father. In today’s society, however, it is not unusual for both spouses to hold down day jobs, making the custody decision more even-sided. Joint custody is thus a possibility.
The California Courts website advises: “In California, either parent can have custody of the children, or the parents can share custody. The judge makes the final decision about custody and visitation but usually will approve the arrangement (the parenting plan) that both parents agree on.”
California Family Code 4053 governs child support in California, which makes each parent equally responsible for supporting the children.
However, the law can reduce the financial gap between custodial and noncustodial parents. If the custodial parent has only $1,000 a month to provide shelter, food, and other caregiving services to the children, and the noncustodial parent has $5,000, child support can be used to shrink the gap and benefit the children.
California guidelines take into account many factors besides just the disposable income of each parent, including whether there are children from a previous marriage, which parent spent most of the time with the children before divorce, the cost of the children’s daycare and health care, and other factors.
Rely on Experienced Legal Guidance
When it comes to divorce, there is no “one size fits all” solution. Each relationship has unique characteristics and challenges when it comes to ending the marriage and moving on in life while still providing for the children.
If you’re eyeing divorce or have been served divorce papers, you must reach out to experienced and compassionate legal counsel. In California, men have the same rights and protections as women when it comes to divorce, so don’t rush into an agreement you may later regret. Speak with an attorney first.
If you’re anywhere in the counties of San Bernardino or Riverside, California, contact me immediately at the Law Office of Shelly Jean John. Let’s discuss your situation and arrive at a mutually acceptable approach moving forward to help make sure your rights and best interests are fully respected.