The choice to divorce from one’s spouse is a weighty decision. It should not be made hastily, nor without good counsel that it truly is the only real solution to the problems that have developed in the marriage. Unfortunately, not all counsel can be called “good counsel.” There are many common myths that can shape a person’s thinking incorrectly and thus potentially lead them toward making a wrong decision in this life-changing matter.

At Silva & Associates, we want to ensure that couples who are heading toward a divorce do so with full and correct information, guided by the truth and not by falsehood – however popular it might be. In this article we want to briefly correct a few common misconceptions about divorce that we hear frequently. We present them here with no particular order or priority in mind.


Myth #1: All divorces are nasty, drawn-out, and expensive legal battles.

Quite obviously, divorce occurs because a marriage is not working. Unfulfilled expectations, hurt feelings, distrust, perhaps even a sense of abandonment, or, worse, bona fide abuse; each of these can play a significant role in breaking down the intimate relational bond that the marriage was intended to be when it began. Emotional pain is necessarily a part of the equation. There’s a reason why the iconic symbol of a divorce is a wedding photo torn in two.

However, that does not mean that the painful causes of divorce must influence, for the worse, the divorce process itself. The level of contentiousness in the divorce process lies squarely on the shoulders of each party and their willingness to take responsibility for themselves and their own attitudes and communications. Are both of them willing to sit at the table and work out financial and custody agreements in an amicable and cooperative way? If so, then except for the necessary formalities, a courtroom – with its attendant confrontational atmosphere – may be completely avoided.

Pursuing a resolution through mediation or other alternative methods will also likely shorten the length of the divorce process dramatically. In California, where we practice, there is a statutory minimum duration of six months for a divorce to be legally finalized. Of course, a litigated divorce will take much longer: the current average is about 15 months. But if each spouse agrees to contribute to the solution rather than to the problem, they can formalize the necessary agreements relatively quickly. Then it is just a matter of paperwork processing.

Finally, by approaching the process in a way that avoids courtroom time, the overall cost of the divorce can be greatly limited. There is still a cost involved, of course: the absolute minimum cost to file divorce paperwork in California is $435. Other fees (for instance, online filing or mediation services) could add hundreds or perhaps a couple of thousand dollars to that price tag. Still, compare that number to the statistical average cost of around $17,000 to $26,000 (depending on whether child custody is an issue) for even a mildly contested divorce case.  

The point is, it is possible for a couple to work out their differences in an amicable way, which also reduces the time and expense of a divorce.


Myth #2: Men always get the upper hand in divorce proceedings. 

From the outside, some final financial judgments in a divorce may not always look completely equitable. But that is usually a problem of perception, not reality.

Each state, of course, has its own laws that govern how a marital estate is to be divided. The state of California is one of a handful of states that follow the “Community Property” concept: assets and liabilities (with some exceptions we will address below) that are obtained between the date of marriage and the official date of separation are divided 50-50. Other states may take other factors into consideration that result in a non-50-50 split.  

However, none of the laws in any of the fifty states permit the man (or the woman, for that matter) to truly “get the upper hand” in any genuinely unfair manner. Furthermore, if it can be demonstrated that one or the other spouse was, in fact, advantaged in any way, the disadvantaged spouse can appeal that decision to a higher court.


Myth #3: All assets must be divided 50-50 in a divorce. 

This is really the mirror image of Myth #2. Yes, in California, all “Community Property” must be divided 50-50. The difference between the myth and the reality is the qualifier of which assets get divided. 

We have already defined what is meant by “Community Property.” The other category is called, simply, “Separate Property.” This would include any assets and liabilities that were acquired before the marriage or after the separation. But it would also include, for instance, property obtained by inheritance, which, unless it has become completely commingled with other marital assets, would remain the property of the inheritor spouse. Likewise, certain loans, especially student loans, can be assigned solely to one spouse, and the other spouse even has the right to reimbursement for any share they had in paying off those loans.

So it is not that ALL assets get divided equally; it is only those assets that belong to the marital estate. THOSE assets (in California, at least) must be divided 50-50.


Myth #4: The mother always gets custody of the children.

When children are involved in a divorce case, their care and wellbeing are among the top priorities of the presiding judge. Decisions about custody will be made according to what is in the best interest of the child. And in California specifically, there is a statutory prohibition against giving preference to one parent (usually the mother) based on their gender.  

What this means, then, is that the first choice is to award custody of the children to both mother and father. Both, then, would have the legal responsibility to make decisions about the children’s care and wellbeing. 

It is important to note here that the law differentiates between child custody and child support. If, for instance, the father fails in his child support payments (or spousal support payments, for that matter), this does not impact his child custody rights. The mother cannot, on her own volition and authority, keep her children from their father in such a case. Only in the case of genuine abuse or neglect, or if either the mother or father have issues with substance abuse, can that parent’s custodial rights be limited or removed.


Myth #5: “Common law marriage” has the same rights as regular/traditional marriage.

The fact is, there is no “common law marriage” in California. It does not matter how long a couple has lived together; they cannot claim “Community Property” rights if they should choose to separate from each other. 

Sometimes, though, unmarried couples make “contractual” agreements with each other, called “Marvin Agreements” in California law. “Contractual” is in quotation marks because these agreements do not necessarily need to be in writing. Typically, these agreements involve some form of quid pro quo: one of the individuals agrees to do something or give something in exchange for the other individual’s financial support. If one of the parties backs out of their part of the deal, it is possible for the agreement to be enforced by the law. Of course, legal counsel and a court case would be needed to initiate the enforcement.


Myth #6: A divorce will solve all your problems.

Every marriage encounters challenges. Sometimes, especially when the health and wellbeing of one of the spouses or children is in jeopardy, a full divorce may be the only way to give them needed protections. But not all marriage challenges are of that “high conflict” sort. And, in such cases, it is wise to strongly consider any other options that may be available short of divorce itself.


The Final Myth: Only High-Priced Lawyers Can Adequately Negotiate A Divorce

While a skilled and experienced lawyer can be beneficial in a divorce, it is not always necessary to hire the most expensive lawyer to get a favorable outcome. At Silva & Associates, we have those skills, and we have that experience: Our expert attorneys have handled all types of divorce cases, with all types of nuances and levels of severity. And we bring all that experience to the table to help our clients achieve the best possible results. But we are also committed to doing so at a price that will not break our client’s finances. Even simply locating our offices in Alameda rather than downtown San Francisco or San Jose allows us to offer competitive rates compared to our peers. So we encourage you to reach out to us today and let us help you navigate this challenging process.