The Divorce Process – Myths Busted

During the course of the day, I get a lot of phone calls asking about the divorce process. Most of the call is spent debunking divorce myths. The divorce process is not as mysterious or as unfair as the media shows. Let’s be honest, TV and movies demand drama, and the divorce process, often, is very undramatic. People can be dramatic but the law is pretty straightforward. It is because of these divorce myths that people get afraid, bullied or fight for things for which they simply are not entitled to receive.

There are 11 basic myths about the divorce process. These myths have about as much basis in reality as a unicorn. Hopefully, after reading this article (hey, also look at the great video our team made as well), you can breathe a little easier and realize that divorce is not the end but is a new beginning.

Myth #1: The Non-Working Partner Gets Nothing

A widespread myth suggests that if you aren’t working during the marriage, you’ll walk away empty-handed after a divorce. A lawyerly way of describing this myth is that is a “misconception.” Another way to put this is “a lie.”

I often hear this one from women who have stayed home to raise the children. The husband has threatened that in the divorce “you will get nothing because you didn’t work.” This threat is used to bully and harass the spouse. First, thing, this is a lie. Period. It is merely bullying and is not the law. Let me repeat, in the divorce process, the nonworking spouse will NOT be denied equitable distribution of the marital property.

Often in marriages, one partner opts to stay at home, usually to manage the household, potentially raising children or other relatives, and providing crucial family support. In New York law, this personal contribution to the marriage’s welfare has long been recognized both by statute and case law. It plays an essential role in equitable distribution and maintenance.

In the Divorce Process, the nonworking Spouse’s essential role as a homemaker is recognized.

New York law ensures that the non-working spouse’s essential role in the partnership is not overlooked and that they receive a fair share of marital assets and maintenance, paving a path towards securing their financial future in the divorce process. The critical role of a non-working spouse in a marriage is intrinsically valuable and the New York legal framework ensures that it is rightly acknowledged.

Courts often strive to ensure both partners can maintain a standard of living close to what they experienced during the marriage. This principle is executed through the concept of maintenance or spousal support. Factors like why one spouse wasn’t working, their education, and potential to earn in the future are all considered. Remember, each case is unique, and there’s no one-size-fits-all approach.

Myth #2: Mothers Always Get Child Custody

I’ve devoted an article to child custody in the divorce process as well as when the parties were never married. Whether the parties were married or not, the law is the same.

Mothers do not always get custody. Mothers do not automatically get custody. A mother does not have superior rights to the father.

I’ve seen mothers get their heads ripped off by judges when claiming that they have greater rights than the fathers. And that’s by women judges.

In the New York divorce process, child custody decisions are based on what is believed to be in the best interest of the child. This principle manifests in a detailed evaluation of various factors.

The “best interest of the child” standard aims to ensure the child’s safety, happiness, mental well-being, and moral and intellectual development. This standard recognizes that every child is unique and each family situation is distinct, thus, what may be in the best interest of one child may not apply identically to another.

When deciding on child custody, New York courts usually take into consideration the following factors:

• The physical and mental health of both parents.
• The ability of each parent to provide for the child’s emotional and physical needs.
• The willingness of each parent to encourage and allow frequent and continued contact between the child and the other parent.
• Any history of domestic violence.
• The child’s established living pattern and quality of home environment.
• Depending on the child’s age and maturity level, the child’s preference might also be considered.

Joint vs Sole Custody: New York law expresses a preference for parents to share as equally as practically possible in the custody of a child in a divorce case. However, in some situations, the court might grant sole custody to one parent if it is determined that it would be in the best interest of the child.

Times have changed, and so have the norms. Custody decisions are based on the child’s best interest, not gender. Factors like the ability of parents to provide stability, their parenting skills, and even their working hours can influence the decision. Today, joint custody, where both parents share responsibilities, is gaining traction.

Myth #3: Once You File, There’s No Turning Back

Deciding to file and going through the divorce process doesn’t mean reconciliation is off-limits. Many couples attempt to mend their relationship even after initiating the divorce process. Counseling or therapy can often help couples communicate better and decide on their future course.

There was a non-retired judge in Brooklyn who was famous for convincing couples to reconcile right in his courtroom! I’ve even had clients get remarried about the divorce.

Myth #4: Someone Has to be at Fault

Previously, to go through the divorce process one needed to prove reasons like infidelity or cruelty to get a divorce.

New York once required proof of fault for a party to be granted a divorce. However, as of October 2010, New York law has allowed for “no-fault” divorce, simplifying the divorce process and reducing potential acrimony or distress caused due to attributing blame for the marital dissolution.

The introduction of the no-fault into the divorce process means that you no longer need to prove any allegation of wrongdoing by your spouse to file for divorce. Instead, one party just needs to state under oath that the relationship has irretrievably broken down for at least six months. In the divorce process, this is done in the complaint, and later in the Affidavit of the Plaintiff.

Crucially, under the no-fault divorce law, the misconduct of a party does not play a role in maintenance (formerly known as alimony) or equitable distribution (the division of marital assets). The court is directed to consider a list of other factors to determine a fair allocation of assets and setting of maintenance. These considerations include the length of the marriage, the income and property of each party, the parties’ ages and health, and the present and future earning potential of both parties, among others. Past misconduct, however, is not on the list.

However, domestic violence may play a role. I’ve got an article on that here. This is a recent change to the law, and its effect on the divorce process is still uncertain. As more judges publish decisions on this new law, it should become a little clearer.

Myth #5: Assets are Always Split Down the Middle

This myth is a little murkier. In the divorce process, the court tries to be fair, but fair doesn’t always mean equal. It’s important to note that equitable distribution doesn’t necessarily mean equal distribution. The court aims for a result that’s fair and just, recognizing that each party’s contributions to the marriage can’t always be measured qualitatively. Similarly, maintenance orders are designed to provide financial assistance based on need, rather than punishment or reward for marital conduct.

Asset division isn’t always a straightforward 50/50 split. The court considers various factors, like each partner’s financial stability, marriage duration, and child custody outcomes, to name a few. It’s about fairness, not necessarily equality.

I have addressed equitable distribution factors in this article.

Let’s take some basics: most marriages involve a house and some type of retirement, like a pension or 401(k). Any house bought during the marriage will generally be considered marital and pretty much split equally. There may be modifications for your individual case depending on where the down payment came from. You need to talk to a lawyer to nail this down.

The pensions and retirement assets earned during marriage will be split. Money earned before or after is separate property under the divorce process and not subject to division.

Sometimes we split everything down the middle, other times we swap items of similar value. May times, particularly in my cop divorces, the cop will take his/her pension and waive off an equal share in the house. The practical effect is that the cop gets the pension and the spouse gets the house. We can do all sorts of mixing and swapping of assets.

Myth #6: All Divorces are Warzones

While some divorces can be challenging, many couples manage to find common ground. Methods like mediation and collaborative law are helping couples approach divorce in a more amicable manner.

Most of my divorce colleagues will tell you this simple fact: “I know how the divorce process works. I can settle your case for X dollar or we can litigate this and you will spend 10 or 20 times that amount to get a similar result.” For example, an uncontested divorce can range between $5,000 to $10,000 on average. (Depending on your facts it could be more or less.) However, that same $5,000 uncontested can be $100,000 if it becomes contested, and the result will be nearly the same.

Recently, I settled a divorce on the identical terms that I proposed three years ago. The difference is that the spouse caused my client to incur close to $100,000 in legal fees, and for her to incur the same. That was almost $200,000 wasted for no good reason.

Myth #7: Divorcees Can’t Grieve

Ending a marriage can be emotionally taxing. It’s essential to understand that grieving post-divorce is natural and part of the healing process. There’s no shame in seeking support during these times. I often advise my clients to seek support groups. You’d be surprised how much better you’ll feel when sharing and being supported by people who’ve been where you are now.

Myth #8: Divorce Equals Failure

Choosing to end a marriage doesn’t mark one as a failure. Often, it’s a brave decision, signaling self-awareness and prioritizing well-being. Mistakes happen. People change. Being miserable is no solution.

Myth #9: One Spouse Can Stall the Divorce

A common belief is that if one partner isn’t on board, the divorce can’t proceed. This isn’t true. While one spouse might contest some elements, they can’t block the entire process.

You have to understand that one of the most important players in the divorce process is the judge. The divorce judges work hard. They work very hard. In my personal opinion, I think divorce and family court judges have the hardest jobs and they are all incredibly dedicated.

That being said, they also have enormous caseloads. They don’t have time for nonsense and game-playing. The judge is always looking for a way to resolve or settle the divorce. In fact, most divorces do end in settlement. I’ve have settled a lot of divorces in the courthouse under the eye of the judge.

Myth #10: You Must Divorce in Your Marriage State

You don’t need to get divorced where you got married. Typically, you can file for divorce where you or your spouse resides. New York requires that at least one party have lived in New York for at least one year.

Myth #11: Divorce Lawyers are Out to “Win”

Contrary to popular belief, divorce attorneys aim to guide their clients toward a fair resolution, not just a “victory.” Their role is to ensure client’s rights are protected and respected.

Most of my colleagues are decent and honorable people who work hard to achieve a fair resolution. However, there are lawyers who deliberately spin up a client with the goal of jacking up the attorney’s fees. They are easily spotted. A lawyer tells you that they are seeking a quick and fair resolution for you under the law and is probably not seeking to jack up the fees. But, if the lawyer stokes your anger, and promises to take your spouse for “everything they have” then you may want to look for a new lawyer.

In Conclusion

The divorce process can be painful and bewildering. But, being able to separate fact from fiction will arm you in this process. The more you know, the more confident you will be, and then better able to make informed decisions.

If you have questions, please call me at Port and Sava, 516-352-2999 for a free 15-minute telephone consultation.