Six Widespread Myths About Divorce

If you are contemplating, heading towards, or in the midst of a divorce, you may encounter a number of fairly widespread and definitely persistent myths about the marriage dissolution process. There are six myths about divorce that are particularly pervasive and pernicious:

• A divorce settlement can be readily changed at any time
• A noncustodial parent can be denied visitation if behind on child support
• A divorce can be stopped if one spouse does not want to end a marriage
• Mothers are preferred when it comes to child custody
• Children can select the parent they want to live with
• Property in a divorce is divided 50/50

You are not alone if you operate under the assumption that a divorce settlement agreement can be changed with relative ease at any time in the future. The reality is that you must not sign off on a divorce settlement agreement thinking something to the effect that you don't like its terms but will just get them changed at a later date.

A divorce settlement agreement ultimately will be incorporated into a divorce decree handed by a court. In other words, a settlement agreement entered into between divorcing spouses becomes the order of the court. While the possibility exists to alter or amend some aspects of a settlement agreement incorporated into a divorce decree, further judicial action will be required. In other words, a judge will have to agree to a change and alter an existing order of the court.

A second widespread divorce myth is that a custodial parent can stop visitation or parenting time if the noncustodial parent is behind on child support payments. In fact, a custodial parent cannot block visitation based on a noncustodial parent's nonpayment of child support.

If a custodial parent wants to suspend of alter visitation of parenting time, that individual must obtain a court order regarding the same. A court is not likely to suspend visitation because a noncustodial parent is behind in paying child support.

Yet another pervasive divorce myth is that a spouse can bring divorce proceedings to an end if that individual does not want the marriage to end. In other words, even if one spouse wants a divorce, if their partner does not want to take that action, divorce proceedings cannot take place.

The idea that a spouse can deny divorce proceedings in this manner is false. While some states do permit fault divorces, the use of no-fault divorce is the most commonplace grounds upon which marriage dissolution is sought in the United States. The fact that one spouse wants a divorce and another does not epitomizes irreconcilable differences.

Even two decades into the 21st century, the idea that mothers are preferred when it comes to child custody persists. This is not a legal doctrine. Indeed, in some states in some years fathers were awarded primary physical custody or residential custody more often than mothers.

In years gone by, there was a legal principle enshrined into law called the tender years doctrine. This concept held that very young children need to be in the primary care of their mothers following a divorce. However, the tender years doctrine has now been stripped from the laws of all 50 states.

Children are not automatically able to pick the parent they want to live with when a divorce occurs. The laws vary from one state to another in regard to the role a child plays in determining child custody. With that said, broadly speaking, depending on a child's age and emotional maturity, the minor's wishes will be considered by a court in making a custody determination. While considered, a child's wishes usually are not determinative.

Finally, a widespread divorce myth is that property is divided between spouses equally or 50/50. In a community property state, the presumption is that assets will be divided equally. With that said, it is not necessarily true and an unequal distribution can still occur.

In a state that uses the equitable division of property standard - which most states do use - the division of assets is based on what fair and equitable or just under the facts of the case. That does not mean the division will be 50/50.

Additional information about divorce myths and other matters can be obtained by scheduling a free initial consultation. If you have a question concerning divorce, contact the Law Offices of Peter Van Aulen at (201) 845-7400 for a free initial consultation.