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California Family Court Rules - Common Misconceptions

In California family law cases, litigants tend to rely on their own sense of right and wrong when making decisions in their cases. However, many times, what seems fair to the majority of people may not be permissible under the California Family Code. Before taking any questionable course of action, it is important to discuss the issue with an experienced divorce attorney. Violations, even innocent violations, of the family code can have a significant impact on your divorce case. The following is a list of common questions and answers which may come as a surprise to parties to a divorce:

Do I have to pay child support if my ex refuses to let me see my kids?

California Family Court Rules - Common MisconceptionsA common misunderstanding regarding family law is that child support is linked to child custody and visitation. Divorce attorneys spend a significant amount of time working through child support issues with their clients. One typical scenario in family law occurs when one parent (dad) refuses to let the other (mom) see the children or exercise her custody/visitation rights. In this case, mom may threaten to stop paying child support until she is permitted to see her children and exercise her legal parental rights. After all, why should mom have to bear the legal burden of paying support if she is not given her legal benefit of being a parent? However, under California Family Code § 3556, a violation of a visitation order does not justify withholding child support. If mom were to stop paying court-ordered child support, she will accrue arrears and may be subject to contempt of court regardless of whether her visitation rights are being frustrated. This is because child support is a duty owed to the child and not the other parent.

Can I cancel my spouse's insurance after a divorce petition is filed?

California Family Court Rules - Common MisconceptionsWhen one spouse files for divorce, it is not uncommon for the parties to begin living apart, splitting up household expenses, and creating their own accounts. The process of untangling two lives from one marriage is slow and involves a lot of clerical changes. As the spouses begin to un-mingle their finances it may only seem natural to cancel joint insurance policies. However, as soon as one party files for divorce and the other is served with the corresponding paperwork, Automatic Temporary Restraining Orders (“ATROs”) become effective. The ATROs prohibit either party from unilaterally cancelling existing health insurance, life insurance, car insurance or other similar plans. However, the parties have the ability to reach an agreement to act outside of default code provisions. These agreements are best negotiated with the help of an experienced divorce attorney.

Can I take our children out of state to see my family over the holiday?

Family on the BeachWhen divorcing parties have children they may make every possible effort to maintain stability for the children during the divorce process. In addition, many families travel out of state over the holidays to visit family members and may want to continue this tradition for the benefit of minor children. However, once a divorce proceeding has commenced, both parents are prohibited from removing the children from the State of California without the prior written consent of the other parent or court order. In a volatile divorce, a violation of this ATRO could result in parental kidnapping allegations.

Don't settle for less when determining your rights. Contact us if you have questions about how to divorce in San Diego. Nancy J. Bickford is the only family lawyer in San Diego County representing clients, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). For more information about the consultation process, call our office at (858) 793-8884.