Ten Divorce Myths

Unfortunately, there are too many misconceptions about what actually happens in divorce cases. Potential divorcing parties should be aware of what is actually true concerning their rights. What follows are ten of the most common misconceptions or "divorce myths".

Myth Number 1. Whoever files first has the advantage.

There is no legal advantage to "winning the race." to the courthouse by filing first. The court will not favor the party that files first. Sometimes it is necessary to file in order to obtain temporary relief, such as temporary child support, alimony and attorney's fees. Furthermore, it also could be advantageous because once the divorce case is filed any assets acquired or debts acquired are no longer marital.

Myth Number 2. If a party leaves the marital home, she will lose her rights to the home.

This is a common misconception. Leaving the marital home does not cause the party leaving to lose rights in the home. In fact, party leaves with the children can be awarded exclusive possession of the marital home as incident to child-support. When the court makes its decision concerning the marital home, it will not consider whether the party left the home.

Myth Number 3. The court always favors women over men concerning child custody and timesharing.

This is certainly not the law in Florida. In fact, the law is to the contrary. There is no presumption either for the man or the woman in a custody proceeding. Florida law. In fact, the legislature has removed the word "custody" from the law. Generally, a court will award shared parental responsibility. Parental responsibility is determined by many factors, which relate to what is in the best interest of the child. Historically, Florida followed the "tender years" doctrine, which favored the woman having custody of young children. This is no longer the law in Florida.

Myth Number 4. Adulterers give up everything in a divorce case.

Contrary to common belief, adulterers do not give up their rights in a divorce case. It used to be that an adulterer could not receive alimony. Under current law, courts will only consider adultery if the spouse committing adultery has committed "marital waste". This refers to a party spending marital funds for the benefit of the paramour. If the marital waste can be proven the court may award half of what has been spent to the innocent spouse.

Myth Number 5. Whoever has title to the marital home gets the home.

This is certainly not true. Any action required during the marriage is deemed marital property and usually divided equally through equitable distribution by the court. If a party owns asset pride to the marriage and does not place his spouse's name on the title remains his asset and is considered non marital property and not subject to equitable distribution. However, any pay down during the marriage would be an asset that would be divided by the court between the parties.

Myth Number 6. Contested divorces usually end up decided by the judge.

Many cases start out as contested cases meaning the parties cannot initially agree on custody, timesharing, child-support and financial matters. However, a large percentage of cases are settled at mediation stage of the proceeding or informally outside of mediation. A highly professional, experienced attorney can be instrumental to the parties bringing about a successful conclusion to the litigation by entering into a marital settlement agreement. Thus, what starts out as a contested matter, often includes by a settlement that is beneficial to both parties.

Myth Number 7. If the other parent doesn't pay child support ,It's okay to withhold timesharing and contact the until the child support is paid.

This is certainly a common misconception which is without any legal basis. The law treats non-payment of child support and visitation (timesharing) as completely separate matters. Nonpayment of child support can be enforced through the contempt process but not being forced through self-help such as withholding child visitation contact. The court would certainly look at such action with extreme disfavor and could sanction the parent who take such action.

Myth Number 8. Children can choose which parent they want to live with.

This too is a, misconception. When the court decides the issue of parental responsibility or timesharing, the court must merely consider what is best interest of the child. Although the child's preference is one of about 20 statutory factors, the court is not permitted to give the child's preference for weight and the other factors. Courts are where that children sometimes use their preference is a way to manipulate their parents.

Myth Number 9. If a party stops working, they will do better in divorce court.

This is certainly not the case. The court must determine each parties proper income when deciding child-support and alimony issues. If a court is convinced that a party is voluntarily unemployed or under employed, the court can impute income to the party. This means that the court can assign a level of income to the unemployed or underemployed party as if the party is actually making that level of income.

Myth Number 10. All divorce cases are very expensive.

Divorce cases vary as to cost. The cost of a divorce case is determined by the complexity of the case and the litigiousness of the parties. It is very important to carefully choose an attorney to represent you in your divorce case. An attorney with experience and professionalism can often keep the cost at a reasonable level. The law office of divorce attorney, Stephen J. Press has more than four decades of experience and always strives to protect your rights with professional excellence. Please contact our office at 561-833-2772 for a free consultation.