Divorce Myths and Urban Legends

Don't believe in everything you hear.

Divorce Myths and Urban Legends
By: Cristin Lowe

Whether it’s personal experience, a best friend, or a co-worker’s nephew, everyone has a story to share about divorce.  For us family law attorneys, that often times means that we spend hours upon hours debunking myths and explaining why Aunt Sallie may not be completely correct with her legal advice.  One time, I spent no fewer than four phone conversations with a client who was adamant that I had the law completely wrong because her three sisters and mom had all gone through out of state divorces and had never heard of something.  Here are some of the most common incorrect beliefs about the law that I have heard over the years.

1)      “There can’t be spousal support (alimony) because we haven’t been married ten years.”  Seeing as I’ve obtained support for marriages that only lasted a year or so, this simply isn’t true.  Many people misconstrue what a 10+ year marriage means.  The truth is, the length of the marriage has a limited bearing on the duration and sometimes the amount of support.  Where most people get confused is that after 10 years, a different set of rules apply to how long support lasts.  This is NOT the same as whether or not a spouse is entitled to support or a spouse is required to pay it.

2)      “The mom always gets primary custody.”  The law is very clear: there is no preference for either Mom or Dad.  While that doesn’t mean that fathers won’t encounter mediators or even judges that adhere to the concept that a Mom is the nurturing parent and she therefore needs to be the primary custodial parent, the trend is clearly to follow the law, which states that it is in a child’s best interests that he or she have continuous and frequent contact with both parents.  The standard has been, and shows no signs of changing, that the child’s best interests are to dictate a custodial arrangement.

3)      “If my name is on the [retirement, bank account, car, etc.], it’s my separate property, and the other party doesn’t get any of it.”  The simple explanation of community property is that anything acquired during marriage is community property and both parties are therefore entitled to one-half of its value.  There are many legal intricacies involved with defining separate and community property benefits, but in general, just because your name is on it doesn’t mean that you get to keep it all.  Even if a property is found to be one person’s separate property, it does not automatically mean that the community hasn’t required an interest in that property.

4)      “I have the right to stay on my spouse’s health insurance permanently/I filed for divorce, so I can take my spouse off my health insurance policy.”  If you’ve filed for divorce or been served with divorce papers, take a look on page 2 of the Summons.  There is a box containing “Standard Family Law Restraining Orders.”  During the divorce process, a person may NOT cut off the other party from his or her health insurance absent Court order or an agreement otherwise.  Conversely, at the end of the divorce process, the rules change once a Judgment has been entered.  At that time, both parties are restored to the status of single and there is no longer a legal relationship between the two of them.  That means that ex-spouses cannot remain on the same health insurance policy absent COBRA coverage.  One of the only exceptions to this rule is when one party has permanent military health insurance and the marriage is at least 10 years old.  In general though, once the divorce is finalized, the insuring party can remove the insured party from his or her policy.

5)      “Attorneys just waste everyone’s time and makes the entire process more expensive.”  Of course attorneys take time and money.  Attorneys also provide invaluable legal services and protect your rights—this may end up costing you far more money in the long run.  Perhaps the number one reason why I have clients after their divorces are finalized is to correct a mistake they made while self-representing.  Sometimes I can help, but sometimes there is no way to reinstate a right he or she previously waived.  Even if cases when I can help, it’s almost always more expensive to fix the problem than to have resolved it properly the first time through.