Ask a New York Divorce Lawyer: 10 Common Misconceptions and Myths about the Divorce Process in NY
Have you been thinking about getting a divorce in New York but don't know where to start? Divorces can seem overwhelming, especially if you have a lot of unanswered questions. There are various divorce myths and misconceptions out there. For instance, many people believe that if you can't get your spouse to sign divorce papers, you can't get a divorce. Other people are under the impression that they will not receive retirement benefits if they get a divorce. In this guide, we will clear up these myths and more. That way, you'll be able to proceed with the facts.
Remember, only a skilled divorce attorney will be able to answer your questions as they relate directly to your unique case. However, we want our clients to be armed with the truth. That's why we have created this guide to clear up certain divorce-related misconceptions and falsehoods.
If you need legal assistance with your divorce, we are here to help. Hiring a skilled divorce lawyer early on is the best way to make sure that your case will see success. Our skilled team of experienced divorce lawyers is available to answer your questions and walk you through your divorce from start to finish. With hundreds of successful case outcomes for our clients, we will work hard to ensure that your case receives the best possible outcome as well.
Myths and Misconceptions About Divorce in New York
The divorce process can feel overwhelming, emotional, complex, and is often downright hard. If you're going through a divorce, there's a good chance that you've felt at least some amount of stress because of it. On top of that, dozens of misconceptions about divorce are floating around out there. This can muddle the already murky waters of divorce, making the process unnecessarily difficult. We want to help.
Individuals going through a divorce often find that they are getting advice from every direction. Before you listen to any of it, it's a good idea to do a quick fact check first. No matter how well-intended advice is, when it's wrong, it really only makes things worse. Many people have an incorrect understanding of how the divorce process works, or simply throw in their input without thinking things through. It's our goal to help you distinguish fact from fiction, and avoid unnecessary complications.
Divorce Myth 1: If your retirement funds are in your name, you will get to keep them all.
Many people believe that if they get a divorce in the state of New York, they will get to keep all of the retirement benefits that are listed in only their names. This is not true. Many people presume that as long as assets acquired during a marriage are in their name, they get to keep them.
The Truth:
The truth is that all assets acquired during a marriage are considered to be marital assets, regardless of the name that they are in. This goes for pensions as well. These marital assets will be distributed equitably between both spouses in the event of a divorce. Your attorney can help you protect your assets and rights, so if you are concerned, we urge you to call an experienced New york divorce lawyer.
Divorce Myth 2: If your spouse doesn't consent to a divorce, you can't get one.
Another common myth is that if a spouse does not consent to a divorce, you will not be able to get one. This is a dangerous myth that can keep couples who can and should begin the divorce process in a toxic marriage.
The Truth:
The truth of the matter is that even if your spouse refuses to agree to a divorce, you can still obtain a divorce in the state of New York. This is because the Supreme Court holds the authority in the matter of divorce and can grant divorces on a number of different grounds. New York recently joined the states that have “No-Fault” divorces. That means you don’t need to prove adultery or cruel and inhuman treatment or abandonment. Rather you can simply testify truthfully that the marriage has been irretrievable broken for a period of time and that will be sufficient grounds to be granted a divorce. There are many ways to work through the grounds or reasons for the divorce, even if one spouse does not wish to get divorced. That being said, if your spouse is being disagreeable or refusing to get a mutual divorce, it may be wise to seek legal counsel. This way, you can avoid certain difficulties as the divorce proceeds.
Divorce Myth 3: The court will always award custody to the mother.
This is a very common myth that can stir up a lot of trouble. A lot of people are under the impression that mothers always will get custody when a couple with children gets divorced.
The Truth:
In actuality, the state of New York gives no increased consideration or weight to the gender of the parent. Both the Father and Mother have equal rights to the children where custody is concerned. In order to be awarded custody by the Court the Court will consider which parent is most fit to care for the child or minor children. The Court will consider the history of the marriage and who was the primary care giver, the current work schedule, financial resources, and what is in the overall best interests of the child(ren). Custody laws can be complex, and many legalities will be taken into consideration during the divorce process in New York. First, it's important to understand the terminology that is used in New York when discussing divorce. Below is a brief list of some of the most common, but certainly not all, custody terms one will hear in the state of New York:
• True Joint Custody
With true joint custody, each parent will share both physical custody of children and decision-making authority equally. True joint custody is not very common as it requires an immense level of communication, consideration and understanding between the parents getting divorced. The blunt truth is if the parents were able to have this level of communication, consideration for each other and understanding they probably wouldn’t be getting divorced.
• Sole Custody
Sole custody is the opposite end of the spectrum when compared with true joint custody. With sole custody, only one parent will have physical custody of a child or children and that same parent will also have final decision-making authority. It is important to note that just because one parent has sole custody does not mean the other parent has no rights. Rights of weekend parenting time with the children, vacations, midweek parenting time are all protected even when the other parent has sole custody. In addition, the parent having sole legal custody is responsible for informing the other parent of the decision being contemplated. If the non-custodial parent doesn’t agree and the custodial parent still wants to go ahead, the non-custodial parent can bring an action in court challenging the decision arguing it is not in the child’s best interest.
• Legal Custody
You have read the term “Legal” custody but let’s dive in to what that really means. It involves the issue over who has the authority to make important decisions about a child. This can be related to things like a child's education, medical treatment, or any religious preferences. As discussed in more detail above, there are a number of forms Legal Custody can take.
• Physical Custody
Physical custody refers to which parent a child will primarily reside. Usually, the non-custodial parent (parent that the child does not primarily live with) will get to see the child based on a schedule for shared parenting time which can include weekends, mid-weeks and of course vacations, holidays and birthdays. There are literally hundreds of permutations of how this could work and is often customized by the parties and their attorneys to maximize each parent’s time with the child(ren).
If the parties cannot agree on what form child custody will take, the Court will then have to decide and will consider many factors. Below are a few of the most common considerations of the Court when determining child custody awards:
• Which parent primarily cared for and spent the most time with the child(ren).
• The behavior of both spouses throughout the marriage and also the divorce.
• The financial stability of both parents.
• Relevant history of abusive behavior or neglect.
In most cases, the parent who was considered the primary caregiver will usually retain physical custody of minor children. However, there are many other moving parts and legal issues to consider. Nothing is set in stone. We once again recommend speaking with an experienced divorce lawyer if you are concerned about who will get custody of your children after a divorce and what form that custody will take.
Divorce Myth 4: If the divorce is your fault, you will lose everything.
Some people believe that the spouse who is "at fault" for a divorce will lose more assets and custody of any children. This is simply not true.
The Truth:
The fact is, in the state of New York, it doesn't matter who's "fault" your divorce might be. Absent seriously egregious behavior, the reasons for your divorce will rarely impact the way that maintenance (alimony), asset division, or other aspects of your divorce will be handled. Factors like adultery, abandonment, or other issues, do not negate the fact that both parties will be treated with equality and fairness in New York. However, depending on how egregious the behavior complained of is, it is possible that it could affect the Court’s view of a party’s fitness for custody, whether the party’s visitation with the children should be supervised, or whether there is a financial connection between he behavior and the marital assets to be divided.
In addition to this, as your divorce case proceeds, the valuation of assets will help to determine how certain marital assets such as your marital residence will be divided. If you have a business, a business valuation will also be completed. However, the party at fault for a divorce is not one of the factors that strongly impacts marital asset assessments in New York absent truly egregious behavior.
Divorce Myth 5: You can't get a divorce if you don’t know where your spouse is.
A few people may say that if your spouse is unavailable to be served, you cannot divorce them. A spouse’s whereabouts may be unknown because they have been arrested, have abandoned you, or are refusing to sign divorce papers in general. While it is true that your spouse must be legally served for divorce, just because you can't nail them down to serve does not mean you cannot get a divorce.
The Truth:
Even though there are specific legal processes in place that must be followed to obtain a divorce, your spouse receiving in hand service of divorce papers will not always be necessary. While the Court does require that your spouse is legally served for a divorce, things can be handled in many ways. In some cases, serving your spouse with a process server or asking them to consent and agree to receiving service of divorce papers is not always available.
If your spouse refuses to participate in the divorce process, or simply cannot be found, things may take longer than usual, but you can still get a divorce. A goof New York divorce lawyer will be able to walk you through exactly how to still file for a divorce if your partner is making it difficult to serve them legally or has simply left without leaving any information as to where they went.
Divorce Myth 6: Your spouse still has to pay your health insurance after you get divorced.
Some believe that their spouse still has to pay for their health insurance after they have gotten divorced. Others believe that their spouse is only obligated to pay for the insurance of minor children.
The Truth:
Actually, under the New York Domestic Relations Law, a spouse does NOT have to pay for the health insurance of the other spouse. After a judgment of divorce, each spouse will be responsible for their respective health insurance costs. If one spouse is not financially secure part of the maintenance (alimony) amount should include the cost of healthcare as one of the expenses the spouse needs help affording until they can attain self-sufficiency.
As a aside, where health insurance for minor children is concerned, the party that will have to pay these costs will depend on the child support, financial position of the parties and the custody arrangements in place.
Divorce Myth 7: Child support is not needed after your child is 18.
You may have heard that child support payments will stop after a child reaches the age of 18 in New York, but this is also not true.
The Truth:
The New York Child Support Standards Act mandates that children are entitled to support until they reach the age of 21. The only exceptions to this are if they are emancipated or married. And often times, if the child is enrolled in a 4-year degree college or university the emancipation age could extend to 22. However, it must be noted that if the child is going away to school the Room and Board portion of the tuition will have to be considered and a credit might be given to the spouse paying child support if they are also contributing to the cost of Room and Board.
Divorce Myth 8: If my spouse hasn't paid child support, they don't get to see the kids.
Many people are under the impression that if their spouse doesn't pay child support or has missed a child support payment, they don't get to visit their children.
The Truth:
The truth is that in New York, children will get visits with the non-custodial parent as long as the visits are in the best interests of the children. If a spouse has not received child support payments as agreed between the spouses or as ordered by the Court, they should NOT engage in self-help denying visitation. They should bring a violation proceeding in court to enforce the agreement or court order. Consulting a divorce attorney when your spouse is in violation of their support payments is key to ensuring a successful outcome.
Divorce Myth 9: The husband always will have to pay maintenance (alimony) to the wife.
Some people believe that husbands are the ones who have to pay maintenance (alimony) to their ex-wives after a divorce.
The Truth:
This is also false. Maintenance (alimony) considerations are not determined by gender. Instead, factors like current income, the ability to find gainful employment, a couple's marital residence, and the equitable distribution of assets, as well as separate property assets, will be considered. Your divorce lawyer can answer questions that directly pertain to spousal maintenance and alimony in your specific divorce case.
Divorce Myth 10: You have to be separated for a year to get a divorce in New York.
If you believe that you have to be legally separated for a year to get a divorce in New York, rest assured, this is not the case.
The Truth:
While some divorce cases hinge on a separation before a divorce judgment can take place, this isn't always the case. Your circumstances, the way you file, and the grounds for divorce, will determine what prerequisites are required before filing for divorce.
We hope that this has helped clear up a few of the more common questions and misconceptions people have when considering a divorce in New York. Operating under false beliefs doesn't help your divorce. Knowing the truth can assist you figure out how to proceed properly as you work through the divorce process. If you still have questions, our firm is available to help.
Hire a Top Divorce Lawyer for a Better Outcome
Considering getting a divorce in the downstate area of Long Island, the five boroughs or Westchester, Dutchess, Rockland, and Orange Counties? We recommend hiring a skilled New York divorce lawyer. This is the best first step you can take to ensure that your case will be resolved effectively. Our firm offers top divorce lawyers with years of experience handling divorce cases of all kinds. We can help you decide on a course of legal action that will work well for your life. With some of the best-reviewed divorce lawyers in the state and hundreds of successful case outcomes, our firm is here to help you with all divorce-related legal matters.
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