If you’re contemplating divorce, you may be surprised by the following common misconceptions.
Learn the truth about common divorce myths by reading below.
Myth #1: Divorce is a Bitter and Nasty Process
You may have heard terrible stories from friends and family about their vitriolic divorces. While divorce certainly isn’t pleasant, the reality is that this isn’t always the case. The level of hostility in a divorce hinges largely on the parties themselves. If you really want to make things more stressful, complicated, and expensive for everyone involved, you can certainly take steps to make your divorce hell.
One way to achieve this is to hire a “shark” of a divorce lawyer with instructions to “take him for everything he’s got.” Many people fail to realize in the heat of the moment that the only winners in these situations are the divorce lawyers involved, who rack up more and more fees as tempers flare and arguments explode. The more sensible and prudent way to go about dissolving your marriage is to work with your divorce lawyer to negotiate a reasonable and fair settlement with the other side.
If you keep a level head and remain open to compromise, the entire divorce process will be much easier and far less costly.
Myth #2: Everything is Split 50/50 in a Divorce
Parties to a divorce have certain property rights, which vary depending on where you live. Some states utilize a principle known as “community property”. In a community property state, both spouses are deemed to equally own all income and assets earned or acquired during their marriage. Most states, though, including Pennsylvania, follow equitable distribution laws. In these states, the court will divide all marital property between the spouses in a fair and equitable manner.
A Pennsylvania court will equitably divide your marital property without regard for any alleged marital misconduct. The court will consider all relevant factors, including, but not limited to the following:
- length of the marriage
- any prior marriage of either party
- the age, health, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties
- the contribution by one party to the education, training or increased earning power of the other party
- the opportunity for each party for future acquisitions of capital assets and income
- the sources of income of both parties, including medical, retirement, insurance or other benefits
- the standard of living of the parties established during marriage
Myth #3: Mom Automatically Gets Custody of the Kids
Years ago, this was standard practice in family law courts in Pennsylvania and across the country. Today, family law practice has become more modern, and courts don’t automatically award custody to the mother based on gender alone. In Pennsylvania, child custody cases are governed by the PA Child Custody Law, which took effect in January 2011. The law instructs courts to base their child custody determinations on what is in the best interest of the child.
The law specifically states that a court should assure a reasonable and continuing contact of the child with both parents so long as it is in the best interest of the child. The PA Child Custody Law is gender-neutral, meaning that there is no presumption that a mother or a father will automatically be awarded custody. Courts are explicitly prohibited from assuming that custody should be awarded to a particular parent based solely on gender.
Myth #4: I Don’t Need a Divorce Lawyer
There is partial truth to this common divorce myth because there is no express legal requirement that you be represented by legal counsel in order to achieve a divorce. You should be aware, however, that it is highly recommended that you do not attempt to represent yourself in your divorce, especially if you have no legal experience. Divorce is a complex legal process that entails many legal and procedural requirements that vary from county to county.
An experienced divorce lawyer will help you to understand the rules and requirements necessary in order to obtain a divorce under your state’s law, and he or she will be able to advise you with regard to how best to achieve your most important divorce goals. As a skilled and professional negotiator, a divorce lawyer can negotiate with the other side using reason, not emotion. This will help you to reach the best possible resolution during this difficult time. The consequences of divorce are long-lasting, and so it’s important to take the right steps to best protect your interests.
Myth #5: My Spouse Has to Agree to the Divorce
Even if your spouse does not agree to the divorce, he or she does not have the ability to stop you from getting a divorce. Obtaining a contested divorce is more difficult and time-consuming than an uncontested divorce, but you will be able to finalize your divorce even if your spouse doesn’t agree with your decision. If you want a divorce but your spouse does not, the first thing you should do is hire a divorce lawyer to represent you. If you don’t have your spouse’s consent, you can try to file for divorce using fault grounds.
Fault-based divorce requires you to go to court and prove grounds for your divorce based on your spouse’s conduct, such as adultery, abuse, or desertion. If fault grounds are not available in your case, you can file for a no-fault contested divorce by citing an irretrievable breakdown of your marriage. You will have to establish a separation date and wait two years before the court will grant you a divorce.
It’s important to gain a realistic perspective if you’re considering a divorce. There are many common misconceptions about divorce, and it’s important to be able to separate myth from fact as you proceed through the process. The counsel of experienced divorce lawyers can be tremendously useful in this regard.
License: Creative Commons
Jason B. Martin, Esquire is a Pennsylvania divorce lawyer and founder of The Martin Law Firm in Montgomery County, Pennsylvania. Jason is exceptionally experienced in legal family matters, including prenuptial agreements, child custody, and divorce according to Pennsylvania state law. For more of Jason’s articles, visit http://www.jbmartinlaw.com/blogs.