5 Myths About Divorce
I spend a lot of time debunking myths about divorce from callers who have gotten bad information from a myriad of sources. Sometimes it’s a poorly written article or folklore. Often it’s from a well-meaning friend/relative/acquaintance who had a bad experience or dealt with a different fact pattern in their own divorce. Here are five of the misconceptions I hear frequently.
1. Living together 7 years equals married. Not so. Less than 20% of states even recognize common law marriage anymore, and those that do don’t base the status on how long the parties have lived together. The behavior analyzed to determine whether or not a common law marriage was formed in such states generally include having intent to be married and holding each other out as husband and wife. Where things get sticky is when parties really don’t intend to be married, but do things like file joint tax returns because they’ll get more money back. Then the relationships takes a bad turn. One party claims they’re married (usually the one asking for alimony) and the other says they’re not. The denier is now in the position of explaining to the judge whether they are lying in court or they lied when they swore under oath to the federal government they were married on their tax return.
2. Mother gets custody of the minor children. There was a time when this was a foregone conclusion, but in most places those days are gone. In many states, judges are prohibited from taking gender into consideration when awarding custody. The courts generally determine what custodial arrangement is in the best interest of the children by looking at factors such as parents’ relationship with the children, employment situations, geographical distances between the parties, if the parties can get along to make joint decisions and whether one party is more likely to facilitate good relations between the other and the children.
3. Joint custody means no child support. Joint legal custody is generally about making decisions together and not necessarily the division of time each parent has the child. How child support is calculated varies from state to state, but most take into account discrepancies in income and the physical custody arrangement. It is disheartening that sometimes financial need conflicts with one party agreeing to more expansive time between the children and the other parent – a situation that often lands in court. But in many cases, agreeing to, or receiving an order for, joint custody does not preclude the parent with the lesser income from receiving child support.
4.The wife in a long-term marriage will get alimony. In the days when women generally didn’t work and when they did their wages were cute, this was a truism. While length of marriage is still factored into an alimony decision, the judge will first look at whether or not there is a need by one party to have assistance transitioning into a more self-sufficient economic position. If there is a need, and if the other party has the ability to pay, the judge then looks at length of time assistance will be needed, the age, health and earning capacity of the parties, as well as other case-specific facts. Notice I didn’t say the ability of the ‘wife to transition’ and the ability of the husband’ to pay? Gender neutrality is required in making alimony decisions.
5. There is a magic age where a minor can choose which parent to live with. This misconception has probably gained footing because many states have a given age where a child can testify, or a child’s testimony will be given deference in stating a preference of where they would like to live. I could have said “with whom” they would like to live, but having represented dozens of children, I have learned it’s often about “the where.” Generally 12 is an age where courts assume a child has reached a level of maturity to put forth a well-reasoned position. As children get older, more deference is given to their opinion. However, as has been stated over the years, the whims and wants of a child shall not be the deciding factor. Sometimes (believe it or not) a teen-ager is more likely to pick the less restrictive parent – or the one with the swimming pool – over what is in their best interest. The judge takes the child’s preference into consideration as well as the other factors necessary to review when making a custodial decision.
If you are facing the possibility of divorce, or trying to support someone who is, don’t buy into the myths floating around. Don’t make assumptions about how custody and alimony work based on the experience that others – people with different facts, different judges, at a different time – have had. Many attorneys have free consultations to explain your rights and answer your questions about how custody, alimony, and divorce procedure work in your state. Take advantage of that service – it’s time well spent.