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Top 5 Myths About Divorce
During the 20th Century, Western civilization witnessed an unprecedented increase in divorce rates. While scholars debate whether the dramatic increase in divorce may be attributed to substantial economic changes, the advent of no-fault divorce, or wide-spread social acceptance of divorce, what is clear is that divorce has left an indelible imprint on our collective conscience. Divorce has become commonplace as have tales and depictions of divorce n culture, media, and social networking. It is not surprising, therefore, that urban legends and myths have arisen and persisted through the years. The most prominent of these myths are discussed below.
Myth No. 1
A Cheating Spouse Will Lose Everything
During divorce proceedings a spouse will often believe that he or she has the upper hand due to the infidelity (alleged infidelity) of the other spouse. The aggrieved spouse waives the scarlet "A" around as if it were a get-out-of-jail-free card. Unfortunately judges are less concerned about fidelity and more concerned about getting your divorce out of their hair. In some states infidelity can only be considered for purposes of alimony and child custody (by law infidelity cannot be considered in some states for determinations of child support, property distribution, or debt distribution). Even where a judge can legally consider infidelity, the judge may decide not to give it any weight since he/she likely sees infidelity in a healthy percentage of cases.
Myth No. 2
Women Are Automatically Awarded Custody of Children
In determining custody, judges consider the "best interests" of the children. Several factors are relevant to the best interests of the children: (i) Primary Caregiver; (ii) Status Quo regarding residence of the children; (iii) Fitness of Parents; (iv) Preference of Children (among others).
Since in the average family both parents maintain employment, it is not necessarily a no-brainer that Mom will come out the victor when all of the factors are weighed. This is particularly true in situations where Dad has worked from home or where Mom has significant emotional issues or substance abuse issues. Also, the preference of an older child to live with Dad may receive a lot of weight from a judge.
In sum: Women, you don't have it in the bag. Men, you are not necessarily without hope.
Father Prevails in Custody Battle
Myth No. 3
Friends and Family Members Know What They Are Talking About
Friends and loved-ones are going to offer you advice about your divorce. They will not only tell you what you should do but they will predict the outcome of certain disputed issues in the divorce. They will likely have very good intentions. They will likely have no idea what they are talking about.
First, they do not understand the nuances of the law and the way in which the law is applied differently under different circumstances. Second, it is likely that you have not been completely honest with them about your situation since it is only human nature that you share with others details that make you look like the good guy but omit telling others details that portray you in a less flattering light.
Myth No. 4
Children Only Need The Minimum Visitation With The Non-Custodial Parent
Non-custodial parents will frequently seek to spend time with the children in excess of the amount prescribed in the Decree of Divorce. Custodial parents often deny such requests under the belief that it would be disruptive for children to see the non-custodial parent more often than the minimum visitation. While allowing increased parent-time will undoubtedly inconvenience (read aggravate) the custodial parent, more visitation time may be just what the children need. While there is not a complete consensus, some studies show that children who are deprived of meaningful relationships with a non-custodial parent are at greater risk of psychological harms and behavioral problems. Lamb & Kelly, Developmental Issues, supra note 84, at 197; Lamb & Kelly, Using Child Development Research, supra note 87, at 369. Increased visitation, therefore, would appear to be extremely beneficial for children (assuming that the non-custodial parent has not been abusive or neglectful towards the children).
Testimony of Psychologist about Benefits of Increased Visitation
Myth No. 5
One Spouse WIll Get The Other Spouse For Abandonment
With the advent of no-fault divorce the question of which spouse left is generally not important, or, at least, it is not important in the way you would think. In modern family law courts there is no need to prove abandonment since either spouse may sue for divorce and be granted a divorce for any reason. An "abandoned" party is not likely to receive special preference from the Court. The notion of "getting" someone for abandonment, therefore, has largely fallen by the wayside.
Notwithstanding the foregoing, "abandonment" may be relevant for determinations of child custody and property distribution. One spouse leaving the marital home could be relevant for purposes of child custody if the children continue to reside in the marital home with the other parent. However, this situation would not be addressed by a judge in terms of abandonment; rather, the inclination of a court is to maintain the status quo in regarding the residence (read custody) of the children.
Similarly, the issue of which spouse may continue to reside in the marital home (at least pending the conclusion of the divorce proceedings) may be determined by which spouse initially left the home. But again, the issue before the Court would not be "abandonment."
Who offered you the best advice during your divorce?
Beyond the Myths
Knowledge is power. Inform yourself. Educate yourself. Know your rights. Realize that your spouse will likely do the same.
Speak to a good attorney. Ask about the likelihood of a desired outcome and the cost of protracted litigation. Weigh the likelihood of the desired outcome against the cost of litigation. Hope that your spouse does the same. Realize what many other litigants come to realize when a reasonable settlement can be reached without spending thousands in legal costs: sometimes a litigant has no greater friend than compromise. Hope your spouse does the same.
Granted in certain instances settlement is not feasible. In some cases justice requires the parties to move forward to trial. In other cases a cost-benefit analysis compels the parties to press onward. Realize that this is probably not the case for you. Hope that you realize this before incurring significant attorney fees. Hope you spouse does the same.
There are those among us who will make this realization before a single shot is fired in the divorce. For these spouses compromise allies with reason and communication to usher in the uncontested divorce.
The foregoing is intended as general information only and not as specific legal advice. Readers should not rely upon or act upon the information found herein but should always seek professional legal counseling related to the specific facts of their case prior to taking action.