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Divorce Myths – Setting Things Straight

1) Committing Adultery Means You Lose Everything
False. Committing adultery does not automatically mean that you give up everything by fault in the divorce. Most courts see divorce today as a legal proceeding to divide the economic aspects of the marriage. Likewise, most court jurisdictions do not perceive fault in the divorce when considering the division of marital properties. Only rarely will the court consider adultery as impacting the economic status of a divorce proceeding. In these rare cases this generally means that the adultery during the marriage resulted in further misconduct. An example may be that the adulterous affair leads to the adulterer in the marriage to use marital property and moneys to pay for the support of the extra marital partner –“through the dissipation or secretion of assets”. If adultery in a divorce case is used as grounds for the divorce the claim must be substantiated and provable. Furthermore, it is generally advisable by attorneys to avoid claims of adultery in a divorce unless the adultery affected the economic status of the marriage- as the claims of adultery can make the process more difficult and add to animosity between the spouses during the divorce.

2) My Spouse Could Deny Me a Divorce
False. This myth is primarily due to the era before no fault divorces which offered a legal loop hole in which one spouse could make it extremely difficult to achieve a divorce. However, since the inclusion of the no fault divorce your spouse cannot deny your ability to obtain a divorce. This means that it is not possible for either spouse to trap the other within the marriage if the other does not wish to remain in the marital relationship. However, there are still multiple difficulties that still exist in instances in which one spouse wants to get divorced while the other wants to stay married. One such remaining difficulty is that the non-cooperative spouse may attempt to delay the divorce proceedings in an attempt to talk the other out of divorce—this is rarely successful and for the most part dilatory tactics recognized by the judge will be looked upon as disfavor-able and may lead to the expedient proceeding with the case and a larger award to the legally compliant spouse.

3) Divorce Determines Child Custody
False. Divorce does not impact your child custody decision. For the most part divorce is an entirely separate legal proceeding than the child custody proceeding- although the child custody case may be a part of the divorce. Even if fault is found in the divorce it is unlikely that the fault will influence who gets custody. Only faults in the divorce that are sure to negatively impact the children or the care of the children will be considered in the custody proceeding. If faults are claimed in either the divorce or child custody case then they must be substantially proven to impact the court’s decision. The only way in which a fault will significantly impact custody is to prove that the fault makes the spouse “unfit to parent” and therefore an ultimate legal battle in which case the winner of the battle assumes the primary award of custody—which is difficult to accomplish.

4) You Must Have an Attorney to Get Divorced
False, you do not mandatorily need an attorney to get divorced. Every individual wishing to obtain a divorce just as in criminal proceedings has a constitutional right to represent themselves in a court of law. Furthermore every state recognizes an individual’s right to represent themselves pro-se for a civil court proceeding. However, it is the responsibility of all those representing themselves pro-se to be informed of all laws available to them and ignorance of the law will not excuse any failure to recognize the proper procedure nor will it over turn a previous decision. In some counties and jurisdictions the legal resources will provide pro-se representatives the ability to file with simplistic paperwork with an outline of a steps and procedures necessary to file your case. If you have a very simple or uncontested case it may be possible to file for your divorce yourself. However, if your divorce case is more complex and involves kids, significant property, is contested, or may require alimony payments then you should consider hiring legal counsel. If at any point you believe your case is too much for you to handle you may delay your case and seek to retain legal counsel.

5) Same Day Divorce – Go to Las Vegas
False, this myth is based upon the law within Las Vegas that there is no waiting period to get married in the state of Nevada. There is no such thing as a same day divorce in any state within the United States. However, the state of Nevada does have one of the shortest residency requirements in the United States making it possible to get a divorce in the state of Nevada faster than in most other jurisdictions. You may only obtain a divorce in Nevada if you are a resident of Nevada for at least 6 weeks prior to filing your divorce paperwork which is relatively shorter than the typical time period of 60-90 days to establish residency and file divorce proceedings in most other states. Therefore, if you or your spouse has recently moved to Nevada you may be eligible for a divorce in a month and a half’s time.

6) You Have to Get Your Divorce In the Same State You Married
False, you do not have to get the divorce in the same state you were married. The only state jurisdiction requirement is that you must file for a divorce in a state and county in which at least one of the spouses is a legal resident. You can establish residency within a state by becoming a legal resident within the jurisdiction by following state guidelines that require you to remain a legal resident within the jurisdiction for a particular period of time. The waiting period to establish residence may range anywhere from 6 weeks to a year depending upon the state.

7) You Can Avoid Paying More Child Support by Take a Smaller Property Settlement
False, property settlements within your divorce are entirely separate from the determination of child support arrangements established by the court. In other words the issuance of a property settlement does not and will not act as leverage in a child custody establishment of child support. Amounts of child support are generally determined in accordance to state guidelines which use a variety of income, expenses, and disposable assets to determine a calculation of child support owed. In a few cases a judge may deviate from the child support calculations – such as in circumstances that may include external monetary obligations or financial hardships. Child support is viewed as a moral obligation shared by the non-custodial parent and that no settlement between the parents can dissolve the responsibility to support the child—outside of court established obligations. Therefore, taking a smaller portion of marital assets will not allow you to escape court determined support obligations.

8) Keeping Property in My Name Means It Will Always Be Mine
False, marital property is marital property; and marital property is any property that is acquired at the time of marriage. Even if the property such as a house was purchased before the marriage and the husband and wife lived in the house for the duration of their marriage it could be considered marital property because of its designated use. In most cases if the property is marital both husband and wife will put the house in both names, however solely keeping the house in one name will not prevent the house from being subjected to equitable distribution in compliance to division under law.

9) Pre-Marital Jewelry is Marital Property
False, pre-marital jewelry such as engagement rings are not considered marital property in the event of divorce. Once a marriage has taken place the wedding rings and other engagement jewelry is considered to be gifted to the other spouse as it is no longer contingent on the act of marriage. Therefore, wedding rings and other engagement jewelry is not typically subjected to division in settlement or through the courts.

10) Lottery Winnings are Not Marital Property
False, lottery winnings are still considered marital property even in the cases of marital estrangement and abandonment. Therefore lottery winnings are marital property that is subject to equitable division under the law. This rule applies no matter the status of the relationship or which spouse purchased the ticket.

11) Most Divorce Cases Are Settled Through Court
False, only the most contested divorce cases are settled through court. A vast majority of uncontested cases are settled through settlement agreements and negotiation processes. Even the majorities of contested cases are settled through mediation agreements and consent agreements. Most attorneys agree that it is easier for the parties involved to formulate a settlement than it is to go to an expensive trial and for the judge to determine the outcome of the case. Very rarely do family lawyers settle a divorce case on the court room floor. Even in the few cases that go to court attorneys may pause the case for one last chance for negotiations to take place- and in most cases the parties will reach a settlement before the case goes to court.

12) Every Divorcing Women Gets Alimony
False, alimony will not be awarded in every divorce case. In fact in the majority of cases women do not receive any alimony. Furthermore, in the cases that permanent alimony is awarded the wife does not have access to stabilize her personal income due to the fact that her contribution to the marriage was home making and or child care. The fact that the wife has been unemployed for a significant amount of time makes it difficult for her to find employment or significant income and therefore it is required that she receive financial assistance. Even if long term alimony is awarded it can be eliminated in the event of remarriage or financial stability. Most alimony rewards are issued in regards to if the wife raised children and or the length of the marriage. Short term marriages early on in life are very unlikely to receive awards of alimony. In addition alimony is not gender oriented and either gender may therefore be awarded spousal support.

13) Divorces Always Leave Former Spouses Bitter
False, in most cases a divorce can be obtained on amicable terms. Generally speaking a divorce only becomes contentious and nasty when a party seeks for the case to become that way by encouraging their attorney to attack. Other methods of creating contention may be for a spouse to act in bad faith, to hide assets, to “poison the well” by spreading vicious rumors or remarks within the case, to maintain a bad mouthing campaign against the other spouse, or by giving unrealistic ultimatums backed by threats of physical or emotional injury. Although, divorce is never emotionally easy it is possible to go through a divorce without feeling hostile toward each other for a long time after the divorce ends. If your ex-spouse is left angry and bitter after the divorce it may be due to your actions during the proceedings or how you choose to end the marriage.

14) No Fault Makes Divorce Easier
False, no-fault divorce does not necessarily make it easier to get out of marriage. No fault divorce only means that the party filing for divorce does not wish to denote fault for the divorce. Reasons for not claiming fault in the divorce may be to eliminate emotional tensions between the spouses during the divorce. Claiming no fault does not necessarily make the divorce process more expedient.

15) You Must Hire An Attorney For Mediation
False, It is not necessary to hire an attorney for mediation in your divorce case. Most of the time a court may refer divorcing spouses to attend mediation before the hearing of a divorce case to determine if the parties can settle the divorce amongst themselves before going to court. In the event that both parties can negotiate a settlement a formal settlement agreement can be drafted for signing as a consent agreement. The consent agreement can then be signed by the judge and finalized. If the settlement agreement appears complex in any way you may wish to have it evaluated by an attorney or re-written to ensure that the language is legally binding and in compliance with state law.

16) Equitable Distribution Means Equal Distribution
False, equitable distribution does not mean equal distribution when it comes to divorce and marital property/ assets. Equitable by literal definition means what is perceived to be right or fair. In the state of Georgia all divisions of marital estates are considered to be equitable and therefore subjected to a flexible standard dependent upon the judge’s perception of the facts within the case. This may mean that while one spouse is able to retain the entire house the other is able to keep a significant portion of money. Although the awards are not equal they can still be considered equitable.

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