What would happen if some of the most fundamental “truths” you believed about divorce turned out to be nothing more than divorce myths? For example …
What if more than half of all marriages today WON’T end in divorce? (HINT: According to statistics, they won’t. The divorce rate has been under 50% for years now.)
What if the divorce rate wasn’t rising? What if the divorce rate was actually falling? (HINT: The divorce rate has been going down since the 1980s!)
While believing some of these myths about divorce statistics won’t necessarily matter in your divorce, believing other divorce myths will!
Simple. When you’re going through a divorce you will have to make more major life decisions than you will at almost any other time in your life. If you make those decisions based on false information (i.e. based on “divorce myths”) you will probably make bad decisions.
Bad decisions lead to bad outcomes.
In divorce, bad decisions also cost you time, money and a huge amount of heartache. That’s why being able to separate fact from fiction is so important in divorce.
To help you understand what’s really true, let’s debunk some of the biggest divorce myths floating around today.
The Top 10 Biggest Divorce Myths
1. The Divorce System is Fair.
Nothing about divorce is fair.
It’s not fair that your marriage didn’t work. It’s not fair that your life is about to be capsized like the Titanic. Most of all, it’s not fair that your children are going to have their family ripped apart.
None of that is “fair.”
What’s more, what YOU think is fair is probably very different from what your SPOUSE thinks is fair. And what the judge thinks is fair may be the opposite of what either you or your spouse thinks is fair!
Focusing on what’s “fair” (or “unfair” – which is what most people really focus on) only makes you a victim.
Instead of worrying so much about what’s “fair” you will do much better if you focus instead on what’s really best for your children. Focus on what you want, what you need, and what you can live with. Focus on the big picture of your life.
Directing your time, attention, and energy toward getting what you want, instead of on achieving some kind of “fair” result, will save you a ton of time and money. It will also make you happier in the long run.
2. The Judge Will Rule in My Favor.
So many people want their day in court. (Or at least they THINK they want their day in court!)
They want the chance to tell the judge their story. They’re also convinced that the judge will see things their way and rule in their favor. (Otherwise, they WOULDN’T want their day in court!)
But unless the judge took the bench yesterday s/he has seen WAY MORE than whatever you want to tell him/her! What’s more, just because the judge listens to your story, that doesn’t mean the judge will AGREE with your point of view.
There are a lot of reasons for that.
First, much of what you think you’re going to be able to say in court is prohibited. The court rules will prevent you from talking about things you can’t prove. They will prevent you from making hearsay statements or introducing evidence that isn’t legally relevant.
Second, judges are guided, not only by the law, but also by their own opinions and their own life experiences. They have to consider not only the evidence presented, but the source of that evidence. They have to judge the credibility of witnesses. And they get to interpret the way the law of the state applies to the facts of a case.
Because of all that, the judge’s decision is never a “sure thing.”
No matter how “obvious” you think your position is, you never know for sure how a judge will rule until the judge rules. By that time, it’s too late. You’ll be stuck with whatever decision the judge made.
3. Assets in a Divorce are Divided 50/50.
In most states, marital property is divided “equitably,” not equally. (NOTE: If you live in one of the 9 community property states, then your marital/community property will be divided equally. But that STILL doesn’t mean that you’re going to get half of everything!)
Here’s how property division works.
In equitable distribution states, the courts divide marital property “equitably.” That means they divide it “fairly.” (SEE Myth #1 for what’s “fair” in divorce.)
In community property states, the courts divide community property equally.
But in ALL states, the only thing that’s getting divided is the is marital/community property. Not all property is marital or community property.
Property that one spouse owned before marriage is generally their separate property. Property that one spouse gets as a gift or inheritance is generally their separate property.
Separate property belongs to the spouse who owns it. It’s not marital or community property.
What’s more, if you have a prenuptial agreement, it may not matter what kind of property you and your spouse have or don’t have. Your property will likely be divided according to the terms of your prenuptial agreement.
All of this together means that, in the end, your property division in divorce may not be 50/50 after all.
4. Children Can Choose Which Parent They Want to Live With.
A huge divorce myth that loads of people believe is that their kids can choose which parent they want to live with when they are (insert some age here).
In most places, that is simply not true.
When children turn 18 they are generally legally considered to be adults. At that point they can choose who they want to live with. (Of course, at that point they can also come and go as they please. Most child support and parenting time rules will no longer apply to them either.)
Occasionally (but not often!), a judge may want to know a child’s opinion. The judge may ask the child in a private meeting where s/he wants to live. But that usually only happens if a child is an older teenager. What’s more most judges won’t ask a child where s/he wants to live because the judge doesn’t want to put the kid in the middle of their parent’s divorce.
A judge may ask other professionals about where they think a child should live. For example, if a child representative or guardian ad litem is appointed for a child, the judge will want to know what s/he thinks about where the child should live.
But, ultimately, it is the JUDGE who decides where an underage child will live if the child’s parents can’t agree about where the child will live.
The bottom line is that kids don’t get to choose who they want to live with.
It’s simply not their decision.
5. Divorce is Primarily a Legal Problem.
Divorce obviously has a legal side.
Every divorce has to go through the court system at some point. Only a judge can grant a divorce. Every divorce judgment has to be made in accordance with the law. Every divorcing person is supposed to follow the law and abide by the terms of their divorce judgment. Otherwise, they risk being held in contempt of court.
At the same time, divorce is way more than just a legal proceeding.
Divorce is emotional. It’s financial. It’s social. It affects almost every area of your life. What’s more, all the areas that divorce affects intertwine with each other.
Treating your divorce as a legal problem pretty much insures you’re going to make a mess of it.
Divorce is driven by emotions. It’s not a simple “head game.” Your emotions are what make divorce take longer and cost more. Your emotions are what make a divorce so incredibly painful and life-changing.
That’s why it is so important to deal with your emotions when you are going through a divorce. Once you get your emotions under control, it becomes infinitely easier to manage the other pieces of your divorce.
6. Custody of the Children Always Goes to the Mom.
Until recently, custody of the children in a divorce tended to go to the mom. But it wasn’t always that way.
During colonial times, custody of the children in a divorce always went to the dad. (That was because children were considered to be their father’s property.)
But when families started moving from farms to cities, the idea of treating children as property ended. After that, legislatures adopted the “Tender Years Doctrine.” Basically that said that small children need their mother to care for them.
That law stayed on the books across the U.S. for decades.
Then the law changed. Courts were directed to grant custody based on the “best interest of the children” rather than the gender of the parent. That has now been the law in most states for decades.
While courts still granted custody more often to women than men anyway, that, too has changed.
Today, more and more men are fighting for, and winning, custody battles. Courts in general now tend to favor joint custody for children. That’s because judges want both parents to stay involved in their kids’ lives.
So neither parent “always” gets custody of the kids. Like so many other aspects of divorce, when you ask, “who gets custody of the children?” the answer today is: “It depends.” If you believe otherwise, you’re locking yourself into believing a vary damaging divorce myth.
7. I’ll Get More if My Spouse Cheated on Me.
In today’s world, marital misconduct has almost nothing to do with how your marital assets will be divided.
The judge doesn’t care who your spouse slept with, or how many affairs s/he had. When it comes to money issues, the judge also doesn’t care whether your spouse is a narcissist, an alcoholic, or a horrible person.
For the most part, marital misconduct has nothing to do with how assets get divided.
Marital assets will be divided “equitably” in equitable distributions states. They will be divided equally in community property states.
HOWEVER, there are exceptions! (… which is why you always need to consult with a good divorce lawyer in your area before you do anything in your divorce!)
The biggest exception is for something known as dissipation. If your spouse spends money on an affair, that’s known as dissipation. Any money that your spouse has dissipated has to be added back in to the marital estate before it’s divided.
The other way your spouse’s cheating may affect money in your divorce is through spousal support. Unfortunately, this doesn’t work the way most people think.
In some states (not all!) your spouse’s cheating may affect his/her ability to receive spousal support/alimony/maintenance. In those states, a spouse who had an affair that caused a marriage to break down can’t ask for support from the innocent spouse.
However, your spouse’s cheating has no affect on his/her obligation to pay spousal support/alimony/maintenance. In other words, just because your spouse had an affair, that doesn’t mean that they automatically have to pay you support.
8. I Can Stop My Spouse From Divorcing Me.
No fault divorce is now universal in the United States.
That means that in every state in the U.S. (and a lot of the rest of the world) a couple can get a divorce simply because they had irreconcilable differences. Neither spouse has to prove that the other one had an affair, or physically or emotionally abused the other one in order to get a divorce.
Because couples can now get a divorce without having to prove fault, it’s now possible for one spouse to drive a divorce, even if the other spouse doesn’t want to divorce. All the spouse who wants to divorce has to prove is that irreconcilable differences existed in the marriage.
By definition if a couple can’t even agree on whether or not they have irreconcilable differences in their marriage – they have irreconcilable differences in their marriage!
The net result is that a divorce can now be granted even if only one spouse wants it.
The spouse who doesn’t want a divorce can make the divorce take longer. S/he can make the divorce cost more. But one spouse can not stop the divorce altogether.
9. I Don’t Have to Let My Ex See the Kids if S/He Doesn’t Pay Child Support.
Child support and parenting time are two separate issues.
While every parent has an obligation to support his/her children, just because they don’t that doesn’t mean that they don’t get to see their kids.
What’s more, any parent who refuses to allow the other parent to see the kids is probably violating a court order. Violating a court order can get you held in contempt of court. In some places, refusing to allow a parent to spend time with his/her kids in violation of a court order is also a crime. (It’s known as “visitation or parenting time interference.”)
Of course, there are always exceptions to every rule.
If a parent is a danger to the children, that’s different.
But absent abuse or other extenuating circumstances, a parent can’t be denied the right to spend time with his/her kids just because s/he may be behind in his/her support obligation.
10. If I Don’t Like My Divorce Settlement, I Can Change it Later.
Divorce settlements are part of divorce judgments. Divorce judgments are final court orders. Changing them once they’ve been entered isn’t easy or automatic.
That means that if you don’t like the settlement you made when your divorce was granted, you very well may be stuck with it. The fact that you might have made a bad deal, or one that you regret later, is irrelevant.
Of course, if your divorce judgment was entered into as the result of fraud (i.e. your spouse purposely hid information from you), then you may be able to change it later. But doing that is still terribly difficult! (… AND expensive!)
That’s why it’s so important to make sure everything in your divorce judgment is right BEFORE you sign it and before it’s entered in court.
Of course, like everything else in divorce, there are exceptions to this rule.
Any provision in a divorce judgment that pertains to children may be modified later.
That means that child support and parenting time provisions are generally going to be modifiable. The reason for that is simple: Kids change. So anything in your divorce judgment that’s related to your kids has got to be able to change too.
The same thing is true for spousal support provisions. One spouse can lose his/her job or retire. The other spouse can remarry. Or, someone’s financial situation may change. If those changes are “substantial” you may then be able to modify your original divorce decree.
All in all, though, changing a divorce judgment after the fact is usually no easy task (unless you and your ex agree to the changes). Because of that, it’s best to treat your divorce judgment as if it was going to be set in stone before you sign it.
Believing Any of These Divorce Myths Can Hurt You
The problem with these divorce myths is not simply that they’re not true.
The biggest problem is that if you believe any of them, you will be acting based upon false information. When you do that, you can make enormous mistakes in your divorce.
For example, if you believe that the judge will be “fair” and will agree with you because you’re “right,” you may be in for a rude awakening in court. The judge may make decisions against you. Then you’ll be scrambling to figure out what to do next after your original divorce strategy got knocked off course.
If you believe that you can keep your kids from seeing their other parent simply because s/he isn’t paying child support, you may find yourself on the wrong side of a contempt petition. In the end you could lose some of your own parenting time in the future – or maybe even lose custody of your kids because of what you’ve done.
This post was originally published in 2014 and updated on October 23, 2020.