There are a lot of myths out there, and it seems like the number of myths surrounding the divorce process is enormous. When you are going through separation and divorce, you are likely hearing and reading some of the same myths over and over again. If that many sources are putting it forward, then it must be true, right? No, that is not at all correct.
Very often, these claims of the way things “never are” or “always happen” is incorrect or an over-simplification. Worse, you’re trying to navigate the information and misinformation during one of the scariest, most stressful, and most confusing times in your life. It doesn’t help that the court process is mind-blowingly complicated.
These five divorce myths are being raised frequently and deserve to be debunked.
Divorce Myth #1: My divorce is an uncontested divorce because my spouse and I both want to be divorced.
The truth: While both spouses’ desire to divorce is a good start toward an uncontested divorce, a divorce is only uncontested when there are no issues of child custody, child access, child support, alimony, or the division of marital property to be decided by the Court.
If you and your spouse have minor children and you do not have a written agreement in place which spells out the child custody, child access, and child support arrangements, then your divorce cannot be considered an uncontested one.
Similarly, if you and your spouse own marital property like a house, a retirement account, cars, and bank accounts and you do not have a written agreement in place which spells out how the marital property will be distributed, then your divorce cannot be considered an uncontested one.
Not to fear. If you have children and/or marital property and you want to pursue an uncontested divorce, then step one is to work toward getting a written agreement, known as a Marital Settlement Agreement or Separation Agreement, in place.
Divorce Myth #2: My spouse and I have reached an agreement and we don’t need an attorney to write the agreement for us.
The truth: Yes, you are free to write your own agreement. However, it is usually worth every penny to pay an attorney to put your agreement in the proper form. If you need heart surgery you would go to a heart surgeon, right? You would want to make sure that it’s being done right and necessary details aren’t being left unaddressed. The same is true with a legal document you will be relying on to serve as the guide to custodial and access rights, and financial support of your children as well as the distribution of your assets. Your children and your money are too important, and the document that embodies the agreement between you and your spouse is one of the most important documents you will ever have created. An attorney who is well-versed in family law can ensure that you and your spouse have accounted for as many details as possible and properly put your agreement in writing.
Divorce Myth #3: I am already paying for an attorney so I don’t need a specialized expert.
The truth: Sometimes, but not always, in addition to hiring an attorney it is also best to hire a specialized expert, such as a real estate appraiser, business valuation expert, or a tax expert.
An attorney can provide you with expert legal advice and help you navigate the procedural hoops to get your case through the court process. An attorney, especially an attorney who focuses on divorces and family law and who has knowledge of the intricacies of how the Court goes about deciding alimony, child support, child custody, and the division of marital property can provide invaluable guidance in the presentation of information and documents aimed at getting you the child custody and access arrangements and the financial and property arrangements you want and deserve.
However, it is not uncommon to need a real estate appraiser to provide the fair market value of real property owned by one or both spouses. If one or both spouses owns a business, it may be necessary to hire an expert to provide a valuation of the business so that the Court can ascertain how the value of the business figures into the division of assets. An attorney cannot ascertain those values on her own or testify on behalf of a client as to those values. Your attorney can help you decide when you need an expert, what type of expert you need, and help guide you in the choice of an expert.
Divorce Myth #4: Mediation is for people who get along.
The truth: Even people who routinely do not see eye to eye benefit from mediation.
A couple in a high-conflict relationship will spend a lot of time and energy arguing with each other. However, when a neutral third party mediator is involved in the discussion, the mediator is often able to redirect the parties’ focus to A) recognize and appreciate points of agreement; B) find ways to bridge the gap between each party’s position; and C) help the party’s construct a process for future discussion designed to limit the angst between the parties and lead to compromise and shared decisions.
It is important to keep in mind that the purpose of mediation is to help you get on the same page with each other and pre-supposes that at the start of mediation you are not on the same page. After all, if you were on the same page you likely would not need mediation.
Last, although it may take two or three two-hour mediation sessions to reach an agreement, the savings in attorney’s fees to both parties as well as the ability to spare yourselves from the non-financial costs like stress, anxiety, loss of focus on work and tasks at home, etc. can be immeasurable.
Divorce Myth # 5: If we have shared physical custody, then neither party will have to pay child support to the other.
The truth: Very often, even in a situation where the parents have 50/50 shared physical custody, one parent still owes the other parent child support.
The calculation of child support can be relatively simple in some instances. However, in other cases, the calculation of child support can be complicated. The number of overnights each parent has with the children is not the only factor considered when the Court decides if one party will pay child support to the other and how much child support will be paid. In Maryland child support is determined by application of the Maryland Child Support Guidelines which accounts for A) each parent’s income; B) certain costs related to the child such as the cost of providing the child with health insurance and the cost of work-related daycare; and C) the number of overnights the child is with each parent.
While I have debunked 5 myths, there are certainly many more myths surrounding divorce worth debunking. In addition, each case has it’s unique combination of circumstances. When embarking on a divorce, it’s important to seek the advice and assistance of an attorney who focuses their practice on divorce and family law matters.
