10 Divorce Myths Uncovered

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  1. It is OK to deny visitation if the other parent does not pay child support.

Parents often feel that child support and visitation are related and that the paying parent should have time with the children only if he/she is current on their support or that paying support entitles the payor to time with the children. The two issues are absolutely unrelated. Custody, or parenting time, is the time each parent spends with the children to build a relationship, teach, love and nurture the children. Parents do not visit with their children nor are they required to pay for this “visitation” time. Conversely, the payment of child support is essential to the care of the children to ensure they are provided with the food, shelter, clothing and other essential needs. The courts take theseĀ orders for child support seriously and consequences for non payment can be severe, but just as severe is the consequences for interfering with a parent’s relationship with his/her children.

  1. By committing adultery you give up everything.

Committing adultery will likely end a marriage, but not effect the outcome of a divorce proceeding. The court will look at many factors in determining the division of property, one of which is the parties’ conduct during the marriage. However, if the party’s adultery did not effect the marital estate, i.e., trips to Caribbean, expensive gifts, hotels, etc., then it will not likely effect the outcome of the divorce. However, these situations are fact specific and each marriage, and divorce, has a different outcome.

  1. A spouse can deny the other spouse a divorce.

In order for the Court to grant a divorce, there must be a finding of an irretrievable breakdown of the marriage. If one party wants a divorce, and does not want to continue in the marriage, then it is irretrievably broken and a divorce will be granted.

  1. The mother automatically gets the kids.

The custody of the children is based upon the court’s determination of what is in the best interest of the children. The younger the children are at the time of divorce, the more specific the orders will need to be. One of the primary factors the court looks at is the history of parenting during the marriage. If mother was the primary caregiver for the children and took on most of the parenting tasks, then it is likely that the orders will continue in that manner. Courts also take into consideration the working schedules of the parties in order to best utilize both parties available time with the children to ensure that both parents have as much time as practicable with the children with both weekend and weekday time. There are many other factors the court considers, but these are the most common.

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

Child support obligations are separate from all other financial issues and cannot be negotiated for settlement. Child support is paid to assist the custodial parent in the financial obligations of raising children and, as such, is an obligation that is for the benefit of the children. While there are some adjustments that can be made, the courts in will follow the child support guidelines enacted by the legislation in setting and enforcing orders.

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

In contested cases, the court decides child custody based on the best interest of the child. In some circumstances, and through limited means, the court may take into consideration the opinions and statements of the children, but will not interview the children or allow them to testify at court. This is more common with older children. Generally, if the court seeks information from the children, they will appoint a Guardian Ad Litem to conduct an investigation and make recommendations. The investigation will include not only an interview with the children, but also the parents and other important people in their lives like teachers, coaches, doctors, counselors, care providers, and close friends and family.

  1. Keeping the house in my name only means it will always be mine.

Regardless of how any property is titled, any property owned by the parties is subject to division at the time of divorce. This not only includes assets such as real property, personal property, bank accounts and retirement accounts, but also debts. Parties often believe that they will not be responsible for credit cards in the other party’s name or entitled to assets that are not in their name. The court may divide these assets and debts in a way that is not a 50/50 split if it deems the facts of the marriage support and uneven division; however, everything goes into the marital “pot” regardless of the name attached to the asset or debt.

  1. Equitable distribution means that both of the spouses get half and equal shares of the marital estate.

Equitable distribution means that the division will be fair based upon the facts and the history of marriage. The distribution is generally equal, but may not be if the court finds that an equal distribution would not be a fair distribution. There are many factors that the court looks at such as age, health, education, income, future inheritance, future earnings, conduct, length of marriage, and others. The court attempts to make orders so that the parties will end in similar financial situations, or to compensate for conduct of one party during the marriage, which may mean that the estate is not divided equally.

  1. A divorcing woman can always count on alimony.

Alimony is awarded to a party with a need for support from a party with an ability to pay. Alimony was born from the days when men would work and earn the household income while women would stay at home to raise the children. When these marriages dissolved, the woman was almost guaranteed to receive alimony. However, the alimony laws have progressed significantly and the courts look at many factors in determining whether an award of alimony is justified from either party, the duration of the alimony, and the amount. While it is still more common for a woman to receive alimony, it is not uncommon for a man to receive alimony if the facts of the marriage support an award.

  1. Most contested divorces are not settled in court.

The vast majority of divorces are resolved by entering into a Separation Agreement which states all the negotiated terms of the divorce. Divorce settlements are generally reached through the assistance of a mediator or attorneys in order to settle all the issues related to the marriage, including custody, support, alimony, property division, debt division, insurance, and any other issues that arose from the marriage. The court will review the agreement to ensure that it is fair and enter it as a final judgment. In rare cases, approximately 10%, the parties are unable to reach a settlement and the divorce is tried before a judge who will decide how the marriage will be dissolved, custody awarded, and property divided.

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