What You Don't Know CAN Hurt You

What You Don’t Know CAN Hurt You: 7 Things Most People Don’t (And Should) Understand About Divorce

Courtroom dramas on television and film can draw thousands of viewers, but how much do they represent the reality of divorce? Similarly, can you rely on the one-sided information you’ve heard from people who have recently gone through a divorce themselves? It may be more entertaining to learn about divorce through the silver screen, the grapevine, or the pages of a novel, but when you’re considering a divorce, it’s best to be equipped with a solid array of knowledge. These divorce facts that tend to be overlooked by most people, but they’re essential to know before you start taking legal action.

1. Property is usually split equitably—not 50/50

In a few states, community property—or property owned equally by both spouses—tends to be divided equally between both parties after a divorce. This scheme is closer to the idea of a 50/50 split, but it still allows both spouses to keep their separate property. All other states follow the concept of equitable distribution. That means the division of marital property, or assets and earnings acquired during marriage, is fair but not necessarily equal. The facts of your divorce will help determine what is “fair” in your case. While the courts only divide marital property, they will also consider separate property before they distribute everything. For that reason, a spouse with less separate property may receive a greater share of marital property.

2. Your behavior affects children more than divorce itself

It’s commonly thought that divorce can wreak havoc on a child’s psychology, making them more susceptible to divorce and other problems in the future. As a matter of fact, children may suffer more adverse effects from family conflict—not divorce itself. Studies have shown that children in high-conflict families may be better off when their parents divorce. That said, you still have a responsibility to keep conflict at a minimum when your marriage falls through. Your children will most likely stay in contact with the other parent after the fact, and fighting throughout the divorce will only make the process more psychologically damaging.

3. Upkeep costs can pose a financial problem

It’s normal to want your fair share of the marital property, and if you are awarded custody of the children, asking for the house may seem like a natural course of action. The question is, can you afford to keep the house? Make sure you can pay the mortgage, upkeep, and taxes— keeping in mind that you may owe more capital gains taxes as a single person. If you can’t, you may want to ask for something else of equal value. Consider this angle for any other marital property, like stocks, that may require upkeep or taxation you can’t afford to pay.

4. Divorce doesn’t have to be someone’s fault

While it may be tempting to lay blame for a divorce, all states allow for “no fault” divorces. That means you can get a divorce without having to prove your spouse did something wrong. All you have to do is provide a reason that is recognized by the state. For example, most states allow you to cite “irreconcilable differences” as the reason for your divorce—which basically means the two of you can’t get along. You may need to wait through a period of separation lasting months or years, depending on your state. Some states do allow fault divorces, like in cases of domestic violence, desertion, or adultery. A spouse who seeks a fault divorce can usually skip the period of separation, and sometimes they can get more alimony or a larger share of the marital property.

5. Mothers don’t automatically get custody

In the courtroom, child custody is typically awarded based on the fitness of each parent. A parent who has spent more time raising and caring for the child, who is in good physical health, and who has more flexible work hours may be deemed more fit compared to a parent who does not meet those qualifications. Some states will award a “tie” to the mother when two equally fit parents want custody of a preschool-aged child, but most states don’t consider gender as a legal factor in a custody decision. Judges will always put the child’s best interest at the forefront of custody arguments. If you request custody of your child, you will need to prove that you can provide the child with better care, more opportunities, and an overall better quality of life.

6. Mediation is about balance, not domination

Some people think mediation allows one party to dominate the conversation, or take advantage of a power imbalance between the two spouses. While this can happen in the presence of an poor mediator, it is the antithesis of mediation at its core. Mediation typically allows both parties to speak for themselves and make their own interests known. A skilled mediator uses specific techniques to make sure the sessions are balanced and geared to benefit both spouses as equally as possible. Parties in mediation also have more agency compared to the courtroom: they can tell the mediator about conflicts that occur outside the sessions; they can negotiate over nonlegal factors that may not be considered by a judge; and they can usually refuse to sign any agreements that don’t seem fair.

7. Alimony is still alive and well

As a law that has lasted over a century, it may be tempting to think of alimony as an outdated concept that is rarely applied to real life. Alimony payments, also known as spousal support or maintenance, are still a reality for many divorcing couples. It is important to note how alimony rulings have changed over time. Today judges tend to award alimony under more specific circumstances, making it a less common occurrence. Spouses tend to receive alimony based on their ability to find employment, or otherwise support themselves financially, following a divorce. If you were married for a long time and you earn substantially more money than your spouse, you have higher odds of paying alimony.

As you may have noticed, the legal circumstances of your divorce may depend upon the laws in your state. Make sure you read up on any state-specific laws before you proceed. If you have any specific questions about your situation, you should consult a legal professional. Call O’Connor Family Law at 774-314-4725 to make sure you build the best possible case. We will work tirelessly to represent your interests and ensure you get a fair deal.