As a family law attorney, it is essential for me to explain the legal process to my clients. This may sound easy, but with so many myths and piles of misinformation out there, it’s actually quite hard to separate expectations from reality. I’ve found this is particularly true for the legal divorce process.
Divorce in the media is often portrayed as a grand emotional battle fought in court with a full jury or it involves just “signing papers” and it’s over. In real life, divorce is none of those things.
Myth #1: It matters if they cheated.
The biggest misconception I see with clients is that they think their spouse’s actions during their marriage matters to a court of law. I have bad news: whether your ex fooled around with your best friend, or dumped you for their boss, it doesn’t make a lick of difference to how your property and debts are going to be divided. This is because, by and large, most divorces nowadays are “no fault.”
You may be familiar with the term “no fault divorce.” What it means is that no one has to have done anything bad in order for the court to grant a divorce. This is a relatively new thing. It used to be that someone had to prove that there was grounds for a divorce: adultery, abandonment, or abuse — or the divorce would not be granted. You and your spouse could go to court, say you wanted to get divorce and a court could have said no.
Thankfully, that’s no longer the case, as all states now have some form of no fault divorce. In the states that maintain fault divorce alongside no fault, the only real difference cheating makes is that it might make the divorce process faster, for example, there could be a twelve month waiting period for a no fault divorce, but none for a fault divorce.
Myth #2: It’s as simple as signing some papers.
Whether you are separating amicably or not, divorce involves
- going to the courthouse
- filing petitions
- paying filing fees and
- waiting for a judge to sign the final judgement or decree.
Like most legal events, it takes time and money.
Myth #3: Everything is usually split down the middle.
This one is complicated, because in some ways, it’s based on reality. Courts will, in most cases, attempt to divide property and debts in fair and equitable manner, or whatever their state’s version of that is. But courts also look at reality, and sometimes, reality is that going 50/50 on everything everyone owns isn’t fair or equitable at all. What courts see as joint property — that is, property that should be doled out equally — and what they see as non-joint property varies from state to state, and it’s a complex issue. Some states are equitable distribution state, while others are community property based.
On one hand, almost all states recognize that money and property that came into the marriage from one spouse belongs equally to the other, and they will recognize things like a “homemaker contribution” even if that sounds like something from the fifties. On the other hand, many states, especially those equitable distribution states, will see that certain property should be kept separate — things like inheritances or a business that only one spouse built up. But that varies.
What also varies is how a court may divide things up; they may give one person a house and the other a retirement account instead of splitting things in half, in order to make things easier. It’s all dependent on the specific situation.
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