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Ten Common Divorce Misconceptions

Posted June 3rd, 2014 | by The Red Headed Lawyer

Most of what we know about divorce either comes from friends and acquaintances who have been through the process or the high-profile celebrity cases we hear about through the media. What you don’t know about divorce can cost you—either in additional time, money, or stress. Here are some of the most common misconceptions about the process.

1. I Can File for Divorce Whenever/Wherever I Like

Not true. In Texas, one spouse has to have been a resident of the state for a continuous six-month period. In addition, one of the spouses has to have been a resident of the county where the divorce is filed for at least 90 days.

2. Divorce Is Incredibly Expensive

Thankfully, the costly cases we hear about through the media are not the norm. If both spouses try to amicably agree on who gets what and do not depend on the court for every decision, the fees are manageable. If things do not go smoothly, mediation can be a wise choice to shorten resolution time and help curb escalating court/attorney fees.

3. No-Fault Divorce Is Faster and Cheaper

No-fault divorce in Texas means that the parties have agreed that they can no longer live together as husband and wife and there are no fault issues such as adultery. Yes, a no-fault divorce can take as little as two months once it’s on the court calendar. However, this is only true if both parties can come to a timely agreement on the division of assets and the custody and support of any children of the marriage. If the marital assets are many/complex, and there is no agreement as to how to divide them, or if there is a dispute over children’s issues, then a no-fault divorce can become as long and drawn out as an at-fault divorce. Divorce is a process. Any issues that arise can add time and expense to this process.

4. Marital Assets/Debts Are Split 50/50

Actually, the court hopes every couple will appear before it having already agreed to the division of assets and debt. But in tried cases, that is highly unlikely. So, the court looks at what is fair and equitable, which usually does translate into an approximate 50/50 split of the assets and liabilities as a whole. This means, for example, the judge may assign extra debt to one spouse but offset that with an award of more property. Or, one spouse may be permitted to remain in the marital home without having to make an equity payment to the other spouse, but then not be given an equal portion of a retirement/pension fund.

5. Mothers Almost Always Gain Child Custody

In the past, child custody was indeed biased in favor of the mother. In the last decade, however, the number of custody awards in which the dad is awarded primary custody has increased substantially. For most divorce situations where the parents cannot agree on custody issues, the court bases its decision on the best interest of the children, not the gender of the parent.

6. Spouses Who Make Less Money or Who Were the Stay-at-Home Parent Are Entitled to Alimony

There are no automatic provisions for post-divorce spousal support in Texas. Instead, the dependent spouse must request it in the divorce petition. The court makes spousal support decisions on a case-by-case basis. Considerations may include such things as skill set, education level, illness and disability as well as the length of the marriage. In fact, in Texas, post-divorce spousal support (also called maintenance) requires a marriage of at least ten years. If spousal support is awarded, whether as a lump sum or over time, the court intends for it to be a bridge of support for the dependent spouse, not a long-term solution.

7. Cheating Spouses Will Be Punished

While adultery may be the reason for the divorce, the judge usually does not take that into consideration when deciding child custody issues unless the adultery can be shown to have directly affected the children. As far as the division of marital assets, the court can indeed take into consideration “fault” issues such as adultery. Usually, however, the judge makes a property division decision he or she deems is a fair and equitable division of community assets.

8. At the End of a Case, All Inequities Will Be Adjusted

During the divorce process, which may be spread out over many months, one spouse may have over or underpaid the other. Both spouses may be told, or perhaps just assume, that adjustments will be made when the case is settled. But when a case is settled rather than being tried, the interim inequities can fall through the cracks. Make sure any inequities are addressed in your settlement.

9. I Can Always Reopen the Divorce Settlement at a Later Time

Divorce is a painful process and people are usually in a rush to just get through it. When they hear or read that in some cases the settlement can be reopened for issues related to custody, child support, etc., they often convince themselves that they will have certain recourse for change at a future time. This is not so for most settlements. In Texas, property division settlements should be considered set in stone. It is very difficult to change such a division unless fraud can be proved. Custody decisions run very close to being set in stone, although they are easier to overturn than property divisions. Child support, in most cases, can be changed after three years if the facts warrant.

10. I Don’t Really Need a Lawyer

This may be the most dangerous divorce misconception. Often, people try to get through the process on their own to save money. In the end, they may end up being taken advantage of/or harming their own cases. They may not understand the legal terminology or the intricacies of the process. While having an attorney is not a legal requirement, anyone considering divorce should see it as a necessity. It is cheaper in the long run to hire a good attorney than to try to get any settlement or court decision changed later.