If you've never been through a divorce before, the realities of the process will understandably be unfamiliar to you. If you are considering divorce and trying to learn about how a New York divorce works, you may get advice from friends, family members, your hairstylist, or someone at the gym. There's a pretty good likelihood that some or all of what they tell you about the divorce process is just completely wrong.
Myths about divorce in New York can cause people to make decisions or take actions that may wind up hurting them. That is why it is so important to speak with an experienced New York divorce lawyer as soon as possible if divorce is contemplated. Your divorce lawyer can tell you the truth about how divorce works and bust the many myths about divorce.
Here are 12 of those myths that are widely believed but simply not true:
1. Visitation can be denied if my ex doesn't pay child support.
There is a process for enforcing child support obligations, but threatening or denying a parent visitation with their child is not one of them. In short, access to the children and parenting time are not related to the payment of child support.
2. Commit adultery, lose everything.
Will cheating on your spouse lead to divorce? Maybe. Will being unfaithful mean that you'll lose your kids, your home, your assets, and your rights? Nope. In and of itself, adultery will not mean that you lose anything. But adultery combined with a wasteful dissipation of marital assets can be a factor in issues of equitable distribution.
3. Divorce can be denied.
When you file a divorce case, you are actually asking the judge to grant you a divorce. But that doesn't mean the judge can deny your request. If you want a divorce, you probably will get a divorce. New York courts have ruled that there is no right to a trial on the grounds of irretrievable breakdown of the marriage. Once all the financial, custody and visitation issues have been resolved at settlement or trial, a divorce will be granted.
4. Mothers always are awarded custody of the children.
While there certainly was bias in favor of mothers back in the day, the law has evolved along with changes in society to reflect that both fathers and mothers can be "custodial" Decisions about custody and visitation will be made based on what is in the best interests of the child, and that depends on circumstances and characteristics that have nothing to do with gender.
5. You must have a lawyer.
Can you represent yourself in your divorce? Yes. Should you? Absolutely not. If you can't afford a lawyer, the judge in New York may require your spouse to pay for your attorney's fees to ensure that both parties are adequately represented.
6. You must get divorced in the state where you married.
Life is long and people move. If you were married in Alaska but now live in New York, you don't have to book a flight to Anchorage to get divorced. You can file for divorce where you live, even if it's far from the state where you wed, provided you satisfy the residency requirements for filing for divorce.
7. You can avoid paying child support.
Child support payments in New York are established by law. If you have a minor child and you are not the custodial parent, you will have to pay child support. If you fail to comply with a child support order, both your spouse and the state of New York will take aggressive steps to enforce those orders and obtain the support owed.
8. Children get to pick who they live with.
If a child has expressed a preference as to which parent they would like to live with, a judge may take it into consideration as one of the many factors guiding their determination as to custody. However, they are not required to follow a child's choice and will make their custody decisions based on what is in the best interests of the child.
9. Divorce always leads to battles.
Divorce can often be acrimonious and full of hostility, blame, and finger-pointing. But it doesn't have to be. Collaborative divorce, mediation, and divorce attorneys who are focused on resolving conflicts as opposed to starting or escalating them can help make your divorce a process of negotiation and agreement rather than argument.
10. Equitable distribution results in equal division.
Property division in a New York divorce is governed by principles of "equitable distribution." What is "equitable" in a given divorce is not necessarily the equal division of assets. Property can be and often is divided in an unequal manner based on the many factors that go into a judge's decisions about property division. Whether that property is divided 50/50 is not one of them.
11. Women always get maintenance and men never do.
Decisions about spousal support, just like custody decisions, no longer are based on outdated prejudices and reflect the fact that women often earn more than their husbands. Decisions about spousal support are based on the economic realities of the respective spouses regardless of their gender. New York has adopted gender-neutral guidelines to determine how maintenance is awarded.
12. Most divorces go to court.
While you have to file papers with the court in order to get a New York divorce, that doesn't mean that there will be a trial, or that you or your children will have to testify in court, or that there will be lengthy and expensive court battles. If the parties can reach agreement on all issues, the divorce could be granted on papers. Many divorces in New York are resolved without a trial or without the parties ever stepping foot in a courtroom.
If you are considering a divorce or have a family law issue, consult with or retain a competent attorney to bust your false preconceptions of divorce, set you straight and protect your rights.