September 4, 2018

The first divorce was recorded in 1643. Since that time, there have obviously been many millions of divorces granted. With so many different cases and not one of them the same, it can be confusing when trying to navigate the divorce process.

This life changing event often leads one to seek advice from others who have been through it or know someone close to them that has. Some of them will know the correct answer and that is great, others will pass along what makes sense and what they think to be true. As the years go by, some of those answers become standard responses whether they are true or not. These common assumptions are myths. When it comes to divorce, there are many emotional questions and you should make sure you know the truth about how to deal with your concerns. Listed below are some of the more common divorce myths.

Myth: The custodial parent has the right to deny visitation if the other parent does not pay child support.

False: In the eyes of the law, visitation and child support are two separate issues and one is not contingent on the other. A custodial parent who is not receiving child support must go to court to resolve this issue, she/he cannot take it into her own hands by denying visitation.

Myth: Committing adultery means you give up everything.

False: Bad conduct in a marriage is not usually considered in the division and distribution of the marital estate. Angry spouses are often advised against using adultery as a ground for divorce because it must be proved and there is nothing to be gained from it except more bitterness.

Myth: One spouse can deny the other spouse a divorce.

False: Before the days of the no-fault divorce, one spouse could make it almost impossible for the other to end the marriage. Today, this no-fault divorce law means that if someone wants out of a marriage, the other spouse cannot trap him or her. This means that no one must stay married if he or she does not want to.

Myth: The mother automatically gets custody of the children.

False: Moms do not automatically get custody of the children, but in 80 percent of the divorces, the mother ends up the custodial parent, and the father pays child support. If the divorcing spouses do not agree that the children’s best interest is with the mother and both parents seek custody, it is up to the court to decide the best interests of the child. Child custody disputes can create war between divorcing spouses. To win, one spouse must prove the other an “unfit parent.”

Myth: The children get to choose which parent they want to live with.

False: The courts decide child custody based on the best interest of the child using the gold standard which means that, unless there is a compelling reason to do otherwise, the mother becomes the custodial parent. When the children are young, judges do not normally take the wishes of the children into consideration when making their decision but may consider the wishes of older children.

Myth: You must hire a lawyer to get divorce.

False: A lawyer is not needed to obtain a divorce. Everyone has a constitutional right to represent him or herself. Some jurisdictions make it very easy for layman to file for an uncontested divorce. The necessary paperwork can be obtained online. This works very well in simple divorces, where there are no kids, no property, no arguments, and both spouses are working.

Myth: You must file for divorce in the state you were married in.

False: Normally, at least one of the spouses must be a legal resident of the state where the couple files. Jurisdictions often consider service members residents of the state for divorce purposes. Normally, a person becomes a legal resident of a jurisdiction by living there for a period, ranging from six weeks to a year, depending on individual state divorce laws.

Myth: You can take a smaller property settlement to avoid paying child support.

False: Property settlements and child support are separate issues. One cannot be used to leverage the other. Several methods are used to calculate child support, such as income shares or percentage of income, and judges will sometimes deviate from these depending on the circumstances of the case. Child support is a moral obligation of the noncustodial parent, and no parent escapes this obligation to support their children in exchange for a smaller settlement.

Myth: Engagement and wedding rings are marital property.

False: Since wedding rings are gifts from one spouse to the other, they belong to the recipient spouse and are subject to distribution in a marital settlement.

Myth: Lottery winnings are marital property.

True: Lottery winnings are marital property and subject to division and distribution. Regardless of which spouse purchased the tickets, prizes won by married couples during a marriage are marital property.

Myth: A divorcing woman can always count on spousal support (alimony.)

False: Generally, alimony is awarded to stay-at-home mothers whose contribution to the marriage was child rearing, woman who have not worked outside the home for a long time and whose stale job skills make it very hard for her to find employment. A young employed woman in a short-term marriage stands a very good chance of getting no spousal support (alimony.)

Myth: Equitable distribution means that both spouses get half of the marital estate.

False: Equitable distribution assures that the division of the property will be fair, not necessarily half or even equal. Equitable distribution considers the financial situation of each spouse. Equitable distribution is more flexible, and often judges are permitted to exercise discretion in dividing the marital assets. Each state sets forth mandatory factors a judge must consider in making an equitable distribution. Mandatory factors in most states include the length of marriage, the age, health, occupation of the parties, station in life and lifestyle of the spouses, liabilities and needs, tangible and intangible contributions of the parties to the marriage, assets and liabilities, sources and amounts of income, behavior of the parties during the marriage, and work skills and employability.

Divorce is one of life’s most painful experiences. It is wise to seek the advice of a professional when confronted with questions, that can alter the outcome of your divorce settlement and ultimately the rest of your life.

This article is provided as a general overview and is not intended to be legal nor tax advice. Please consult your legal and tax professional for all such advice.
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