5 Myths About Divorce

Posted by: Shel Harrington 17 July, 2013 6 Comments

            I spend a lot of time debunking myths about divorce from callers who have gotten bad information from a myriad of sources. MythSometimes 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{2303b849a176fc4c55cbcb5b49f44c0b6a86ba83e746fb3d962701d1b8d54085} 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.

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6 Comments

  • I really thought #1 and #5 were real. And in a way, I’m kinda sad #5 isn’t.

    What’re your thoughts on the marrying before the six-month grace period is over across state lines and coming back to OKlahoma as a felon?

    • Shel Harrington

      The older the child is, the more likely the Judge is to defer to his/her preference. I wouldn’t like to see a child have the power to make the call, though. A manipulative child will exploit the power. But worse, most children don’t want to have to pick between parents – it is a terrible burden to put on them, even if they do have a preference. They fear hurting one, angering one, causing one to be angry with the other – they just should not be put in that position. I think it’s important to listen to their perspective, and just as important for them to know that an adult will make the call (read: be the bad guy if one is needed).

      I have never seen a violation of the 6-month waiting period law be prosecuted. I advise my clients not to do it because that is the law and we are required to put that term in divorce decrees – so everybody is on notice. The correlation between someone violating that law and someone violating their prior marriage vows is (can you guess?) very high!

      • Thank you for yet another straightforward, child centered, post about divorce. Kids suffer regularly from what seems like the letter of the law without the spirit of the law, and things change over time. I am with you, although there are always going to be those kids looking out for the parent with perks, there are those young people that develop an insight into what is in their best interest and need help to get that information voiced in the best way. Bravo Shel!

        • Shel Harrington

          Thanks, Lisa. As a psychologist who specializes in youth, you probably see these issues way too often – you’ve got a tough job! I always value your input when I’m trying to do mine better.

  • Milissa

    Great points! Loved the article.