Because divorce affects so many people, you're likely to hear stories from divorcees about what should happen in your case. It's best not to take these stories too seriously because every divorce case is unique.
As a result of all this talk, there are countless myths surrounding divorce. Dispelling these misconceptions may help educate those involved in this often frightening and unknown process. Some of the most common myths are covered below.
Divorcing spouses are often concerned that courts will favor the "petitioner" (the spouse that files paperwork with the court asking for a divorce). In fact, the petitioner has no legal rights over the "respondent" spouse.
Moreover, because Minnesota is a "no-fault" state, meaning you don't need to allege misconduct to get divorced, courts disregard claims of wrongdoing, unless they affect the best interests of the children. So, it won't do the petitioner any good to trash the respondent in the initial divorce filing.
There is one advantage to being the petitioner. If the parties reside in different counties, the petitioner determines venue (location) by filing for divorce in the county of choice. Venue can be critical because judicial views on custody and alimony vary from county to county. The respondent can request a change in venue, but will need to show a good reason for the change.
Many individuals mistakenly believe that they've abandoned their equity in the family home by moving out. While the court may award the family home to the spouse living in it at the time the divorce is heard, the spouse that moved out will typically be awarded other property or a cash settlement equal to his or her equity in the home. The bottom line here is that you don't give up your equity in the marital home by moving out.
If you do move out, take steps to guard against destruction of property. Videotape the contents of the home (e.g., furniture, art and other valuables) and make copies of important documents (birth certificates, account statements, deeds and insurance policies) before you leave. You may also consider taking your own family heirlooms and other personal, irreplaceable items with you.
A related concern is whether it's ok to change the locks on the family home once the other spouse moves out. Although technically not legal without a court order, it may be advisable (and it will likely be endorsed by the court) if there are safety concerns, such as domestic violence.
Police can't arrest one spouse for visiting the family home unless there's a restraining order prohibiting that spouse from coming back, or an order granting one spouse exclusive possession. These types of court orders are usually the result of a domestic abuse petition. If you're the victim of domestic violence, contact your local police department for help.
There is a common misconception that title always controls distribution of property. In reality, courts commonly disregard title when determining whether property is "marital" or "non-marital."
Any asset acquired by either spouse during the marriage (except through gift or inheritance) is considered "marital" property and is subject to division by the court. The fact that title is in the name of only one spouse can be inconsequential.
"Non-marital" property includes any property acquired by one spouse before marriage or via traceable, premarital or non-marital funds, inheritance, or gift.
Courts may take title into account when determining whether a particular asset has maintained a non-marital component. For example, if one spouse amassed sizable savings before marriage and kept it all in a separate, individual account held in his or her name only, the separate title on the account may prove that spouse intended to preserve the non-marital nature of the savings.
There is a common belief among child support "obligors" (parents ordered to pay child support) that they are the victims of their ex-spouses or the legal system. The following should help dispel this myth.
First, obligors must remember that child support laws are designed to protect children who have a legal right to be financially supported by both parents. So, before complaining about an ex-spouse or the judge, obligors should remember that courts order child support to ensure that children will continue to thrive after a divorce.
Second, child support is not limitless. The child support guidelines cap the level of support to correlate with the obligor's income and also provide a decreased percentage for lower incomes.
Another common complaint is that the system is too soft on child support obligors. Truth be told, there are some self-employed parents that are doing well financially, but whose "inaccurate" tax returns show little income after they've written off business expenses (e.g., cars, travel and entertainment). Sometimes, these parents are able to fool the system and pay a lower amount of support.
However, if a court finds that an obligor is voluntarily unemployed, underemployed, or has underreported income to avoid child support, the court may impute (attribute) the income the obligor could earn, and calculate child support based on potential rather than actual income.
And, if an obligor stops making court-ordered payments, obligees can go to court for help. Judges have several remedies available to enforce child support orders, including:
In addition, the law doesn't allow obligors to discharge their child support obligations through bankruptcy.
Many of the facts and circumstances that a divorcing spouse feels are important, are likely to be of little importance to the court. It‘s unrealistic to assume a judge can review all of the circumstances that led to the divorce. The issues are simply too complex, the court lacks time to hear all of it, and in the end, they aren't usually relevant to the case, especially in a no-fault state like Minnesota.
Instead, courts evaluate a "snapshot" of the current situation and then apply the law accordingly. To the chagrin of some spouses, courts aren't likely to punish wrongdoing or reward admirable behavior.
Some spouses are under the impression that they must obtain a legal separation to get divorced. To the contrary, legal separation is an alternative to divorce, but the process is almost identical: you file legal paperwork, deal with all the same issues in a divorce, and ask a judge for an order of legal separation. If you plan to divorce, a legal separation is unnecessary and will only increase the total cost of the divorce.
Legal separations are actually pretty rare; when they are sought, it's typically for religious or moral reasons, or to benefit from being separated but not divorced (e.g., some employer-sponsored health plans allow employee-spouses to keep their ex-spouses insured if the couple is separated but not divorced).
The size of the estate doesn't always correlate with the overall fees incurred. Dividing property is not always a major issue between spouses. Some couples with substantial marital estates manage to divide assets with minimal fighting or attorney's fees. Once they're informed of their rights, how the law works, and what a court would likely do, they divide property accordingly. These individuals appreciate the wisdom of avoiding unnecessary legal expenses.
However, mistaken assumptions or contentious attitudes can be costly, even in small cases. For example, some spouses will fight over small assets no matter what the cost and even if the law isn't on their side. Driven by anger, they would rather pay an attorney $2,000, than give $200 to their spouse.
This shortsighted approach overlooks many things, the first of which is the obvious waste of money. It's important to ask yourself if the asset is really worth the fight. Divorce leaves most people with fewer assets than they had during marriage – why spend what you have left on attorney's fees? It also overlooks the possibility that with more property on hand, the other spouse will be able to contribute to college costs and other child-related expenses. Finally, property allocated to your spouse may also reduce the need for alimony.
If you find yourself fighting over everything, take a moment to reflect on why you're doing it, and how much money you're losing on the fight. A good family law attorney will provide solid advice, and help control fees where possible, without compromising on the final results.
Some divorcing spouses believe they should hire just one lawyer, or even a paralegal service, to handle the paperwork for a simple divorce. However, there is an ethical prohibition against dual representation; one lawyer cannot represent both spouses in a divorce.
Moreover, even in a simple divorce, you'll have to make major decisions that will impact your future, including decisions about alimony, what to do with the family home, or retirement benefits. A paralegal service can't provide the guidance you might need; these divorce decisions should be reached with the help of an experienced family law attorney.
Divorce never really ends with a "victory" by either party. Generally, both parties have substantially less material wealth than they started with prior to the divorce. Occasionally, you may hear about a spouse receiving a very large settlement or alimony award. But more commonly, both spouses must compromise in order to reach an agreement.
If there are any real "winners" in the process, it's those who maintain positive relationships with an ex-spouse so that they are able to co-parent their children.
Mediation is well suited to the majority of divorces. Its desirability lies in the self-determination of the parties, the expediency of the process, the reduced overall cost, and the potential that it will help the couple build new avenues for communication to resolve future child-related disputes.
Mediation forces couples to explore mutually-beneficial solutions, including remedies outside the boundaries of court authority. For example, couples can come up with their own, creative divisions of property and debt that are tax-wise for their own situation, but not necessarily something a court would order.
There is no rule that children of a certain age can dictate where they live. Instead, courts will consider a child's preference, giving consideration to the child's age, maturity, and stated reasons.
But age is not the only factor; a mature 12 year old may be taken more seriously than a 16 year old who expresses a preference in an immature or irrational manner (e.g., if the 16 year old wants to live at mom's because she has a 3-D television, a court is not likely to grant that preference much weight).
Most children of divorce exhibit signs of emotional, psychological, behavioral, and social distress. Many have significant adjustment problems and show lower academic achievement when compared with children from intact families. According to one study, 37 percent of children from divorced homes were psychologically troubled and manifested moderate to severe clinical depression, even five years after a divorce. And children deprived of frequent access to their fathers tend to show diminished self-esteem, lasting many years after the divorce.
Counseling is the key to lessening emotional harm to children. Ask your attorney for referrals to a good child therapist.