27 Costly Misconceptions About Divorce

by
Richard Fonfrias, J.D.
Chicago's Financial Rescue & Bankruptcy Lawyer
Fonfrias Law Group, LLC




Married couples often rely on myths and misconceptions about marriage and divorce, especially when the misconceptions sound reasonable. But many plausible-sounding myths about marriage and divorce aren't true, which results in unusually bad experiences for couples hoping to improve their marriage or divorce. Here are 27 Costly Misconceptions About Divorce.

MISCONCEPTION #1: The law allows you to refuse visitation if your child's other parent failed to pay child support.

Not true. The father is usually the noncustodial parent so usually he is responsible for paying child support. The mother, usually the custodial parent, may decide that since the father hasn't paid child support, he is not entitled to visit the child. This is against the law. The custodial parent may not deny visitation. The court sees child support and child visitation are entirely separate issues, meaning one does not depend on the other. The purpose of child support is not so the noncustodial parent can visit the child. The two issues have nothing to do with each other. If one parent is in child support arrears, the other parent must go to court to enforce it.

MISCONCEPTION #2: If you commit adultery, you give up all your rights.

Not true. Courts usually see that divorce relates to financial obligations. The fact that one spouse commits adultery, or takes part in other bad conduct, is usually not taken into account when dividing and distributing property between the spouses. In some states, the court may consider adultery in their exercise of "judicial discretion." But bad conduct is usually limited to bad economic conduct.

MISCONCEPTION #3: One spouse can refuse to get divorced from the other spouse.

No. The concept of no-fault divorce means that no spouse has to stay married if they don't want to. The spouse who doesn't agree to get a divorce may slow down the process, hoping that the other spouse may change his mind. But these tactics usually don't work.

MISCONCEPTION #4: The children's mother automatically gets custody of the kids.

No. In most cases, around 80%, the mother becomes the custodial parent and the father is ordered to pay child support. In many cases, the spouses agree that the best interest of the children is served by living with the mother. But in cases where both parents want custody, the court decides what is in the children's best interest. Many judges decide based on the terms Tender Years Presumption and Maternal Preference, which sides with the mother. When the couples cannot agree on custody, then one spouse must prove that the other spouse is not a fit parent. At the end, one parent gets complete custody and the other parent gets none.

MISCONCEPTION #5: You must hire a lawyer to get divorced.

False. The constitution permits everyone to represent themselves. So you do not have to hire a lawyer. For uncontested divorces, some jurisdictions have simplified divorce procedures. This makes an uncontested divorce easy to get without a lawyer. In fact, you can even get the paperwork online. Uncontested divorces, where you represent yourself, work best when you have no children and no real estate.

MISCONCEPTION #6: In Las Vegas, you can get a divorce in a single day.

No. One of the divorcing spouses must reside in Nevada for at least 6 weeks before filing for divorce. Once the papers are filed, the divorce is usually final in 60 to 90 days.

MISCONCEPTION #7: You can get a divorce only in the state where you were married.

Not true. In most cases, one of the divorcing spouses must reside in the state where the couple files for divorce. A person can become a legal resident of a state by living there for a certain period of time, usually from 6 weeks to a year, depending on that state's law. For example, a couple may file for divorce in Illinois if at least one spouse is a legal resident of state.

MISCONCEPTION #8: If you want to avoid paying children support, you can settle for less property in the divorce.

Not true. Child support and property settlements are entirely different matters. One cannot be used to compromise with the other. Child support is almost always the obligation of the noncustodial parent. And neither spouse gets out from under paying child support in exchange for anything else in the divorce.

MISCONCEPTION #9: Your children may select the parent they live with.

No. When the divorce is contested, the court decides the children's living arrangements. In most cases, the mother takes custody of the children unless a compelling reason exists for the court to decide otherwise. In most cases, judges see the children's preferences as irrelevant, especially for young children. As the children grow older, judges may consider their request.
MISCONCEPTION #10: If you keep the home in your name only, you will get to keep it.

False. One spouse may give an interest in the home to the other spouse if the mortgage payments are made from joint funds. The simple fact of the couple living in the same home may cause it to be considered marital property. In the end, most property the couple acquires during the marriage is fair game for distribution.

MISCONCEPTION #11: The engagement rings and wedding rings are considered joint property.

Not usually. The engagement ring, which is the promise of a future marriage, is usually considered the wife's separate property. Wedding rings, however, are gifts from one spouse to the other and are almost never divided in divorce.

MISCONCEPTION #12: Your marital property includes any lottery winnings.

True. Lottery winnings are considered the couple's property and may be divided and distributed according to the judge's order. Ownership does not go to the person who bought the ticket.

MISCONCEPTION #13: Contested divorces usually end up in court.

No. Most divorces never go to court. Like other legal matters, lawyers representing both spouses usually settle the divorce without court involvement. Lawyers and clients usually prefer a divorce settlement because going to court means high costs and that the judge will make the decisions, which are rarely to the liking of the spouses.

MISCONCEPTION #14: Divorcing women get alimony.

In most cases, no. Women usually don't get alimony. A younger woman who was in a short marriage can usually find a job and, therefore, gets no alimony. But a woman who remained at home for child rearing, who may not have been in the job market for years, or whose skills make it hard for her to find work may get permanent alimony in divorce.

MISCONCEPTION #15: Both spouses are usually angry and bitter when their divorce is over.

Not true. As long as the divorce lawyers and the divorcing couple act in good faith, they can usually settle their divorce without going to court and in a way that is acceptable to both parties.

MISCONCEPTION #16: Men find it easy to get out of marriage thanks to the no-fault divorce.

No. In fact, 2/3 of today's divorces are started by women. Experts believe this is because the wives usually monitor the relationship more closely than the husbands. Also, because men's behavior is often what triggers the marriage breakdown and divorce.

MISCONCEPTION #17: When spouses decide on mediation to end their divorce, they must still hire lawyers.

Not true. Mediation makes filing for divorce easy for couples when they represent themselves. The most expensive part of divorce is when couples cannot agree on the terms of their divorce. Mediation is where the husband and wife agree to the terms of their divorce by working with a mediator. If the couple reaches an agreement themselves, they can go online and get the paperwork to file for the divorce themselves. Most often, mediators do not file the divorce paperwork but they may help the couple prepare the papers. And if the divorce involves specialized orders, they may decide to hire a lawyer to help with the complex paperwork. As a rule, mediation is a low-cost way to divorce and it eliminates the need for a divorce lawyer.

MISCONCEPTION #18: The term "equitable distribution" means that each spouse will get one-half of the marital estate.

Not true. Equitable means fair, which does not necessarily mean one-half. The court decides the issue of equitable distribution based on each spouse's finances. Equitable distribution gives judges a great deal of discretion when dividing marital property. One example is when the stay-at-home mom has been without work for many years. In this case, the judge may favor the divorcing wife because finding a job may be difficult for her.

MISCONCEPTION #19: Men and women who remain single have less stress and higher bank balances than married couples.

Not true. Writing in Agenda Magazine, Dr. Diana Kirschner says, "Married people are healthier emotionally and physically and they have more wealth too. Study after study has shown that love relationships have a huge impact on our psychological, economic, and physical well being. Having a life partner can create a high sense of self-worth, provide intimacy and emotional support, which fulfills the deepest human need for connection, and lead to greater wealth and economic stability.

"As a result, married people may be happier, live more satisfying lives, and have fewer psychological problems, including depression. Many factors lead to better physical health, greater health-seeking behavior, and lower rates of alcoholism. Here's the big take away: for over 100 years, studies around the world have shown that married people live longer and enjoy a higher quality of life than those who aren't partnered."

MISCONCEPTION #20: First marriages are not as successful as second marriages.

People often think second marriages are better because spouses have learned from their bad experiences in the first marriage. But this isn't true. The rate of divorce for second marriages is high than that of first marriages. According to David Popenoe, head of the National Marriage Project at Rutgers University, the divorce rate for second divorces is 60% and for third marriages it is 73%.

MISCONCEPTION #21: Couples who live together before marriage have a better chance of staying together after marriage.

It's hard to tell because no one has found a good way to research the issue. Some studies suggest that people who live together before marriage separate at a higher rate than those who do not live together. According to the National Survey of Families and Households, "unions begun by cohabitation are almost twice as likely to dissolve within 10 years compared with all first marriages: 57 percent to 30 percent." Popenoe says, "People who cohabit may be more skittish of commitment and more likely to call it quits when problems arise."

MISCONCEPTION #22: Children usually get along well during and after their parents divorce.

Not true. Even under the most favorable conditions, divorce is traumatic for children. The author of The Unexpected Legacy of Divorce, Judith Wallerstein, suggests that children struggle for a lifetime after their parents decide to divorce.

Cathy Meyer, a reporter and writer, says unhappy parents don't realize that although they may be unhappy, "their children are probably quite content and don't care if their parents don't get along as long as their family is together." She goes on, "A child's happiness is not dependent on their parent's happiness. A child's happiness stems from routine, having a home, two parents, friends to play with, school activities to be involved in and being able to count on these things being constant day in and day out."

MISCONCEPTION #23: Children of parents who divorce are no more likely to get divorced than children of intact families.

Not true. David Popenoe at Rutgers says, "Marriages of the children of divorce actually have a much higher rate of divorce than children from intact families. A major reason for this...is that children learn about marital commitment or permanence by observing their parents. In the children of divorce, the sense of commitment has been undermined."
Further, he suggests that divorce appears to be a "learned response." Children of divorce, when faced with marital issues, respond how their parents responded, by divorcing.

MISCONCEPTION #24: When parents marry other spouses, their children are better off in a step-family than in a single-parent family.

Popenoe from Rutgers says, "Stepfamilies tend to have their own set of problems, including interpersonal conflicts with new parent figures and a high risk of family breakup."
Elizabeth Einstein, a marriage and family therapist and the co-founder of the National Stepfamily Resource Center, suggests "People bring emotional baggage that's never been dealt with, and that only gets more complicated" in the stepfamily. The baggage includes unresolved loss, grief, anger, and jealousy over the new person in the house. Along with disagreements about discipline.

"While many families manage it pretty well, the evidence is pretty convincing that, on average, children often do not fare better in step or blended families," says Scott M. Stanley of the University of Denver and author of The Power of Commitment.
"Stepfamilies are not like nuclear families, and stepparents are not replacement parents. This statement contains dynamics that make step parenting, even under the best of conditions, very difficult."

MISCONCEPTION #25: If both parties agree, they have a friendly divorce.

Wrong. If you've never been divorced, a "friendly divorce" sounds like a good choice. But while searching for a "friendly divorce," could often learn they are pursuing a mirage. Cathy Meyer says, "Divorce, at its best, cannot be considered an amicable process. No matter how hard we try, there will be bad feelings." And when children are involved, "One or the other parent is going to feel betrayed and hurt [because] those feelings will trickle down to the children, no matter how hard we try to conceal them."
Often, couples think a "friendly divorce" means a painless divorce. Those don't exist. Even simple divorces - with no children, no property of consequence, no alimony, and both spouses employed - result in pain and suffering. The best-case scenario is when couples manage to have a civil divorce, which is a reasonable outcome.

MISCONCEPTION #26: When you're headed for divorce, there's no going back.

Not true. Popenoe points to recent research from a large nationwide sample. The sample found that of the 86% of couples who were in unhappy marriages in the 1980s and stayed married reported being "very happy" or "quite happy" only five years later. And the most unhappy couples reported the most remarkable turnarounds.

Linda Waite, sociologist at the University of Chicago, said "The study found that on average unhappily married adults who divorced were no happier than unhappily married adults who stayed married when rated on any of the 12 separate measures of psychological well being. Divorce did not typically reduce symptoms of depression, raise self esteem, or increase a sense of mastery...Even unhappy spouses who had divorced and remarried were no happier on average than those who stayed married."

MISCONCEPTION #27: You safeguard your marriage by having children.
Not true. People often believe that when they have children together, their failing marriage will get better and prevent a divorce. But Dr. John W. Jacobs, who writes about the "lies of marriage," says "Children are an enormous threat to your marriage. It's very, very difficult to admit that the children you love so much can drive a wedge into your life as a couple, especially if one of the reasons you got married in the first place was to have a family."

Bluntly, Jacobs says "If you want to preserve your marriage, your children cannot always come first ... [I]n your marriage, your spouse must come first, not only for your sake but also so your children can grow up within an intact family."

In most cases, when children are welcomed into the household with a strong marriage, the marriage gets better. But parents who think a child will improve their troubled relationship are usually headed to divorce court.

If you have any questions about uncontested divorce, Illinois divorce law, bankruptcy, foreclosure, or other financial problems, please send your e-mail today to rich@chicagomoneylawyer.com or call 312-969-0730." -- Rich