If you are divorcing, you’re likely to encounter lots of conventional wisdom about divorce. Unfortunately, much of the Divorce CW you hear may be inconsistent with your state’s laws, inapplicable to the facts of your case, or just plain wrong.
Below are some of the most often heard pieces of divorce CW. All of them are widely considered to be universally true, though none of them actually is.
“‘No-fault divorce’ means that a judge cannot
take a spouse’s misconduct into consideration.”
FALSE. No-fault divorce simply means that a spouse is entitled to a divorce without misconduct by the other spouse. In a number of states, however, the reason for the breakdown of the marriage remains one of the factors a judge can consider when making spousal support orders. Judges are most likely to consider misconduct that they consider “egregious,” such as extramarital affairs that involve diverting money to a paramour, or the concealing, transferring or wasting of assets.
“I don’t need a lawyer to figure out child support because any dope can look it up using my state’s Child Support Guidelines.”
FALSE. It helps if that dope is a lawyer, because calculating child support isn’t that simple.
For example, “deviation criteria” can allow judges to ignore or “deviate from” the Child Support Guidelines.
In addition, a spouse’s real income on which the amount of support is based can be difficult to determine—especially a self-employed spouse’s income. And even accurate numbers entered in the wrong spots on Guidelines worksheets can create “garbage in, garbage out.”
“My spouse and I can save on legal fees
by having one lawyer represent both of us.”
FALSE. Lawyers can only represent one spouse in a divorce. The other spouse is self-represented.
“In community property states, everything gets split 50/50.”
FALSE. In community property states, property acquired prior to the marriage or received by inheritance or gift, is separate or “non-marital property,” which remains with its owner. Although the remaining marital property is typically divided evenly, extraordinary circumstances can sometimes alter the 50/50 split, even of marital property.
“In equitable distribution states, everything gets split 50/50.”
FALSE. “Equitable distribution” means a fair division of property. It doesn’t necessarily require an equal division. Judges in equitable distribution states have broad discretion to apply some or all of a number of factors in making financial orders. In addition, many equitable distribution states treat inheritances and property acquired prior to the marriage as separate property that’s not “in the pot” to be divided up.
“If I give up my ownership interest in my home as part of my settlement, I’ll be off the mortgage.”
FALSE. Such a transfer does not affect your liability to your mortgage lender. The same applies to car loans and other “secured debts.” If you transfer such an interest, include in your settlement agreement an “indemnification” or “hold harmless” clause requiring your spouse to reimburse you for any payments you have to make because he/she didn’t.
“My pension is protected from claims by my spouse.”
FALSE. The federal statute known as “ERISA” contains exceptions to the general rule that protects pensions from claims by creditors and other “third parties.” One of those exceptions permits distribution of pension benefits as part of a divorce settlement pursuant to a court order known as a qualified domestic relations order or “QDRO”
“‘Joint custody’ means that parents divide evenly their
time with the children.”
MOSTLY FALSE. This is true in Louisiana, Georgia, and Arizona. However, in most states a joint custody order can specify anything from a 50/50 division of childtime to the commonly used arrangement of primary residence with one parent, and every Wednesday evening and alternating weekends with the other. Note that the term “custody” can cause confusion because it can refer to either “legal custody,” meaning decision-making, or “physical custody” meaning where, when, and with which parent the children will reside or spend time.
“Children benefit when their parents
‘insulate’ them from the divorce.”
MOSTLY FALSE. There’s a difference between shielding and insulating children from divorce.
Shielding children from the antagonisms of divorce is desirable and doable.
“Insulating” all but the very youngest children is impossible. And even if it were possible, children don’t want or need to be insulated. Parents who feel they are helping their children by refraining from even discussing the divorce with them, usually wind up raising the children’s anxiety levels by depriving them of basic information and the sense of security that children need more than ever during divorce.
Learn more about how to achieve more and spend less in your divorce
in Larry Sarezky’s new book DIVORCE, SIMPLY STATED
available at amazon.com