In May 2010 we wrote about how the great recession had caused couples to put their divorces on hold due…
The Top 12 Misconceptions About Divorce
Divorce Demystified: Rumors, Myths, and Misconceptions
Most potential clients who consult with our firm have common fears and concerns about getting divorced. Most of those fears arise out of the perceptions of divorce that are reinforced on television and in the movies. This article is meant to dispel some of the most common misconceptions about Pennsylvania divorce law.
1. Won’t we have our dirty laundry aired in court?
The answer to this questions is probably “no.” First, most divorce cases settle without ever going to court. Second, bad behavior is not really relevant or considered by the court. Nearly everyone going through a divorce has some skeletons in their closet or complaints about their spouse’s behavior. You are getting divorced, after all. And, the court doesn’t have the time or inclination to hear your secrets. Child custody cases, however, are another story.
2. My ex cheated on me, shouldn’t that work to my favor in the divorce?
The corollary to this question is the one from the guilt-ridden spouse, saying in effect that “I cheated . . . shouldn’t I give him/her everything he/she wants?” This question is really similar to the previous question about “dirty laundry.” Unless someone is actively pursing a “fault divorce,” which is very unusual for a variety of reasons, the answer again is “no.” Contrary to popular misconceptions about divorce, infidelity has little to no impact on both divorce and custody cases, often to the great disappointment of the spouse who was wronged.
3. Will I have to appear in court?
Court appearances are only necessary if you and your spouse cannot agree on the terms of your divorce, support or custody of your children. No court appearance is necessary if you are able to negotiate a settlement.
4. Isn’t my spouse going to get 50% of everything I own?
This is one of the most common divorce misconceptions. In Pennsylvania divorces, marital property is divided equitably, not equally 50-50. “Equitable” means according to what the court thinks is “fair” after considering a list of factors. Property is divided 50-50 in “community property” states. Pennsylvania is not one of these states. Plus, only martial property is divided equitably, not everything. Certain property you own may be considered non-marital, such as property you acquired before the marriage, by way of gift or inheritance, or post-separation. Analyzing the marital estate and equitable distribution can be quite complicated.
5. Am I Going To Lose My Home?
Many people going through divorce have misconceptions about their home. They are often afraid they are going to be kicked out of their house or lose their home. There is some truth to this concern. In most cases, both parties are permitted to remain in the marital residence while the divorce is pending, even if the home is technically owned by only one party. Usually, however, one party will voluntarily leave the home because living together has become too uncomfortable. In the end, the court will almost always allow one party to retain ownership of the marital residence if they want to and can afford to “buy out” the other party’s interest through equitable distribution or otherwise. Ultimately, however, one party or the other is going to have to find a new place to live.
6. Can’t it take years to get divorced?
Yes, it can. I have a case right now that I took over from another attorney that has been going on for eight years (though I haven’t had it that long). That, however, is an exception. In general, cases take anywhere from six months to three years to resolve, depending on the parties, the other attorney, and the details of the case. In cases that take over a year to resolve, there is usually a reason one spouse or the other is intentionally delaying the divorce. For example – to keep heath insurance coverage, to remain in a home they cannot otherwise afford, or to get support that they will lose post-divorce.
Other times, a spouse is not cooperating with revealing marital assets, thus delaying the divorce. The good news is that other than getting remarried, once you are legally separated from your spouse, you can generally go about living your personal life as if you were not married.
7. Will I have to pay alimony forever?
Indefinite (lifetime) alimony is rarely awarded in Pennsylvania. Most likely, if you are the higher-earning spouse, you will have to support your ex for some period of time, depending mostly upon your ages and the length of your marriage. A typical marriage of ten years might result in support/alimony payments of two to four years. The amount of alimony is set based on each party’s respective earnings or earning ability, and is usually modifiable based on a change in employment and earnings. The courts’ decision to award post-divorce alimony is factor-based.
8. Wouldn’t it be better for my kids if we stayed together?
Probably not. Yes, divorce is extremely difficult on children, but so is living with parents who are constantly fighting. If you and your spouse can work together to ease the transition on the kids, avoid conflict in front of the children, and keep them out of your disputes, your kids will most likely be better off.
9. Won’t I only be able to see my kids every other weekend?
This is usually a common fear of fathers, but more frequently now, mothers have this same concern. You have to examine your personal situation. If you travel frequently for work or are planning on moving a significant distance away (i.e. an hour or more) from your spouse and your children’s school, then the answer is probably “yes.” However, if you have been actively involved in their lives, work a regular schedule and live nearby, it is likely you can get equal (50-50) or even primary custody of your children. Courts are much more inclined nowadays to assume both parents should be equally involved in their children’s lives. Ultimately, however, it will depend on your individual situation.
10. Doesn’t it cost a small fortune to get divorced?
Most people have heard horror stories about divorce costing fifty or a hundred thousand dollars or more. While such cases do exist, they are much more of the exception, than the rule. And, they almost always involve highly litigated child custody issues that generate the vast majority of the fees and costs. However, there is no getting around the fact that divorce can seem expensive.
A typical divorce can cost anywhere from a few hundred dollars for filing fees for a non-contested, do-it-yourself divorce, to ten to twenty thousand dollars for a more complex divorce involving a relatively large marital estate and several litigated issues. That may sound like a lot. Consider, however, that if you are selling a home, which is a relatively routine and non-adversarial transaction, the realtors will take 6% of the sales price of the home off the top. If your average home costs $300,000, that’s $18,000 for comparatively minimal work. An attorney can provide great value in a divorce, essentially more than paying for their services, by saving you tens or even hundreds of thousand of dollars or more compared to going it alone.
11. Can’t I just process the divorce myself?
This is one of the most common and dangerous misconceptions about divorce. After hearing how much attorneys cost, many people think about trying to go it alone. For most people, that ends up being a huge financial and personal mistake. It’s really pennywise and pound foolish to try to handle your divorce yourself to save on attorney’s fees. Divorce laws are complex, and without in-depth knowledge of the laws, it is incredibly easy to make a mistake that will cost you tens, if not hundreds of thousand of dollars.
I can’t tell you how many times people have come to our office after trying to go it alone in hopes that we can fix their case and financial mistakes. In most cases, it’s too late. Even most lawyers who do not regularly practice divorce law hire divorce lawyers to represent them in divorce proceedings. That should tell you something. Just trying to figure out the paperwork to process a simple divorce can take most non-lawyers days or even weeks. Trying to handle your own divorce is like spending hours trying to figure out how to change the oil in your car, wasting time and getting dirty, just to save $20.00 at Jiffy Lube – only to find out later that you have ruined your engine.
12. Shouldn’t I hire an aggressive attorney?
Another one of the most common misconceptions about divorce. The short answer is probably not, at least if that is what the attorney is best known for. Most non-attorneys perceive the notion of an aggressive attorney as someone who fights about everything and is generally a jerk to the other side. I promise you that you do not want that kind of attorney. They waste your money, delay your case, and do not get you better results. I can think of at least one divorce attorney who is well known for those types of “aggressive” tactics. As far as I can tell, however, the only thing her tactics are good at accomplishing is running up her client’s bill.
What you do want is someone who can properly analyze your case, knows how to negotiate, know when to litigate, and does so in a professional and respectful manner. You also want an attorney who fits with your personality and style. When considering attorneys, make sure you feel comfortable with the person you hire, because that person will be working with you closely and intimately, usually for a year or more.
Cooley & Handy are Divorce Lawyers and Personal Injury Attorneys serving individuals and families in Bucks County, Montgomery County and Philadelphia. We help our clients navigate the ever changing and always challenging legal system with knowledge, experience and a healthy dose of creative problem solving. This newsletter shines a light on some of our latest cases and news of note.