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8 Legal Myths About the Process of Getting a Divorce


Divorce is hard, even if there are plenty of financial advantages of being single. Regardless of why your relationship is ending, the legal process of getting a divorce can be confusing, time-consuming, and expensive.

Unfortunately, plenty of myths can stop you from protecting yourself and your needs, often making a difficult situation even worse. It’s easy to come across misinformation or legal myths that are not only misleading but harmful. Identifying these myths is essential for making your divorce as pain-free as possible.

It’s important to remember that laws differ widely, and each divorce is unique. State differences in divorce laws are significant, and answers to any questions you have about divorce are dependent on numerous factors. If you have legal questions, talk to a qualified attorney. But before you do, here are the most popular legal myths about divorce.

Myth 1: I Have to Get a Separation Before Divorce

The idea that you must first go through a legal separation, or get a separation agreement, before getting divorced is a popular, and mostly untrue, belief. In most states, there are no legal requirements that you and your spouse must live separately or physically separate before either of you files for divorce. In other states, legal separations are possible but not required, while physical, but not legal, separation is required by some states. To further confuse the issue, there are a number of different types of separations that can affect your divorce.

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Trial Separations

A trial separation is a colloquial term used to describe when a married couple agrees to live separately or otherwise independently from one another while still married. Trial separations are not the same as legal separations, as they do not involve the couple asking for a separation order, or signing a separation agreement. Trial separations are informal and do not alter the couple’s marital status. Couples are free to live as they choose, and if they to  live apart, separate their finances, or agree to any other separation term, they can do so.

Legal Separations or Separation Agreements

Beyond the informal trial separation, most states allow couples to obtain a separation order from a court or enter into a contractual separation agreement. A separation agreement or separation contract is a legally enforceable agreement between the spouses that does not involve a court, while a separation order is when the couple asks a court to issue an order stating the terms of the separation. (The type of legal separation available to you depends on the state in which you live.) Legal separations are similar to divorces, with one key difference: A legally separated couple is still legally married. A legal separation is a court order or a contract that addresses all of the same issues a divorce addresses, such as marital support or alimony, as well as property or financial agreements.

There is a wide range of reasons why some married couples may want to get a legal separation instead of a divorce. Some couples are opposed to divorce for personal, moral, or religious reasons, some couples want to go through a trial separation but want a legal document in place to give enforceability to the terms, while some want to maintain financial benefits of marriage while living apart.

Perhaps the most common reason for couples to seek a separation agreement has to do with divorce residency requirements. All states have minimum residency laws that require at least one spouse to have lived within the state for a minimum period. This residency length differs but is typically between 90 days to one year. Legal separations typically do not require the same residency time requirements, and only require that one spouse reside in the state.

So, for example, if you and your spouse move to Ohio and decide to get a divorce, at least one of you will have to live in the state for six months before you can file for divorce there. However, you can file for legal separation in Ohio regardless of how long you’ve lived in the state because there is no 6-month residency requirement.

Living Separately as a Divorce Prerequisite

Some states require that couples must live apart from one another before they can qualify for a divorce. For example, if you live in North Carolina, you and your spouse must be physically separated for at least one year before you can file for divorce. On the other hand, if you live in Louisiana, you can file for divorce after 180 days of separation as long as there are no children in the marriage. If there are children, you’ll have to wait a year.

It’s important to note that living separately or apart does not necessarily require that you have a separation agreement or a separation order. Though state laws differ, living separately may not mean physically separating. In some situations, you and your spouse may be able to occupy the same home or dwelling and still be considered living separately. (These kinds of distinctions are why it’s so important to speak to a lawyer if you have any questions about divorce or legal separations.)

Permanent Separations

When couples split up, it’s common for one to move out before filing for divorce. If during that time, one or both spouses may experience a change in financial circumstances, the timeline of when the physical separation took place can become an issue in the divorce. In these cases, the physical separation is not necessarily a legal requirement that the couple has to meet, though it can become an issue that will affect how the court treats financial or property issues in the divorce.

Fault Separation or Abandonment

Prior to today’s no-fault divorce laws, one spouse leaving or abandoning the other was a valid reason for filing for divorce. In some states, you might still be able to file for divorce or separation on fault grounds if your spouse leaves or abandons you, but it’s not commonly done.

Myth 2: My Spouse’s Lawyer Is Going to “Clean Me Out”

Divorce attorneys routinely get calls from angry spouses who have been cheated on, mistreated, or want an attorney who will stop at nothing to ruin the other spouse in the divorce. Sentiments such as “making my husband/wife pay,” or making sure the attorney takes the spouse “to the cleaners” are common, and perhaps understandable, but they aren’t what the divorce process is all about.

Property or financial settlements are a part of every divorce, and the process of how to divide the assets and debts is at the heart of every state’s divorce laws. Though each divorce is unique, and states have different rules, these laws are set up to ensure that divorces are fair, orderly, and uniform. At the same time, divorce courts are not there to get involved with your marital disputes or conflicts, but rather, to make sure that each divorce proceeds as fairly as possible.

It’s important to understand that when you get a divorce, the court will only decide how to divide the property if the divorcing couple cannot or will not agree to a financial settlement on their own. In other words, when you get divorced, you and your spouse can agree how to divide your possessions. If you cannot agree, the court will decide who gets what. Further, what a court views as fair, impartial, or legally justified may not match your expectation or preferences, but that doesn’t mean the court is taking your spouse’s side or treating you unfairly. It usually means that the court is doing what the law says it should.

State divorce laws can be separated into two main types when it comes to financial settlements: equitable distribution and community property. Regardless of the state in which you live, both exist to ensure that courts finalize divorces in a fair manner.

Equitable Distribution

The majority of states use the equitable distribution method to divide property in divorces. In equitable distribution states, the court looks at a variety of factors to determine a fair (equitable) property distribution. Generally speaking, any property the spouses acquired during the marriage is subject to distribution once the couple divorces. Some other property, such as property inherited by one spouse or property the spouses owned before the marriage and kept separate, may not be subject to division in the divorce.

The factors the court looks at include, but are not limited to:

  • The length of the marriage
  • The financial contribution each spouse made during the marriage
  • The earning capacity of each spouse
  • The age and health of each spouse
  • The influence being out of work, such as being a stay-at-home spouse, had on either spouse’s income potential
  • The contribution each spouse made to maintain the household.
  • The couple’s standard of living during the marriage
  • Tax implications of asset divisions

The court will take all of these factors into account when it makes its decision on how to divide your property. Depending on the circumstances, a court can, for example, decide that a 50/50 split is fair in one situation, while a 60/40 split is fair in another.

Again, it’s important to understand that the court is not there to ensure that either spouse finds its ruling equitable or fair. Rather, the court’s obligation is to divide property in a way it believes is equitable in accordance with state law.

Community Property

Eleven states use a community property system instead of an equitable distribution system. In Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin (as well as Puerto Rico), the court will divide marital property on a 50-50 basis. Community property states make a distinction between property owned entirely by one spouse (separate property), and property owned by the couple or community property. In general, each spouse is entitled to keep their separate property, while the court will divide the community property as an even split.

Community Proper System

Myth 3: The Court Will Punish Me/My Spouse for Cheating

It’s common for divorce attorneys to get clients who want to tell them everything about how their spouses cheated, how they treated them badly, or how horrible the marriage was. They want to detail every interaction, every lie or deception, and everything that lead to the breakup of the marriage. While this instinct is natural, it doesn’t matter nearly as much as you think or hope it might.

Infidelity hurts. When you’re hurt, you want justice. But filing for divorce with the expectation that the court will punish an unfaithful spouse is a mistake. The current divorce process is not there to punish spouses for their behavior. It exists to ensure that the issues present in the relationship end in a fair and reasonable manner. The reason for this is that all states today have some form of no-fault divorce proceedings.

No-Fault Divorce

As the name implies, a no-fault divorce is one in which there is no need to identify who, if anyone, caused the marital relationship to end. In days past, the only way couples could get divorced was if one spouse could prove that the other did something that the law recognized as the reason (grounds) that the marriage came to an end. These grounds included abandonment, cruelty, criminal conviction, the denial of affection, and adultery.

No-fault divorces do not use these traditional fault grounds. To get a divorce today, either you or your spouse will have to state that you are incompatible, that the marriage has broken down, or something similar. Different states have slightly different phrasings for what grounds are suitable in a no-fault divorce, but they all allow couples to get a divorce without having to prove that the other spouse did anything wrong, or did anything to lead to the breakup of the marriage.

Because all states allow for some version of no-fault divorce, courts will no longer consider fault issues, such as adultery, when deciding divorce cases. There are, however, some exceptions.

Adultery and Financial Settlement

In general, a court will not use adultery as a factor when deciding financial settlements unless the adulterous behavior directly affected the marital finances. So, if you had an extra-marital affair and you and your spouse cannot agree to a financial settlement, the court will not typically take the adultery into consideration.

However, if you squandered your money pursuing the adulterous relationship, or the relationship itself had a significant negative impact on you or your spouse’s financial lives, the court can consider it when deciding on a financial settlement.

Adultery in Marital Support

Often referred to as alimony, spousal support, spousal maintenance, or by similar terms, marital support is money one spouse pays to the other after filing for or getting a divorce. Marital support is a part of some, but not all, divorces, and can be paid by either spouse regardless of sex.

In some states, adultery can affect whether the court awards marital support, or how much support it awards. Though state laws differ significantly, adultery can prevent the adulterous spouse from receiving marital support, or affect the amount of support awarded by the court. In general, the adultery is one of many factors the court uses in making spousal support decisions, and there are no clear formulas on how much adultery will weigh in a court’s ruling.

Adultery and Child Custody

When a couple with children go through a divorce, the court will have to decide how to divide child custody and child care responsibilities. In general, the adultery of one or both spouses has no effect on the court’s custody decision. Courts make custody orders based on what is in the child’s best interests, and not on whether one or both spouses acted in a way that lead to the end of the marriage. In other words, courts don’t punish you for what you did; they are simply there to make sure your children are protected.

The one exception to this is when the adultery affected the children directly. For example, if your wife had an adulterous affair that resulted in her neglecting your children while she was supposed to be caring for them, that can affect how the court makes its custody decision. Similarly, if you carried on an adulterous affair in the presence of your children, or acted in a way that negatively affected their health or well-being because of the affair, the court can use that as a factor when awarding custody.

Myth 4: I Can’t Get a Divorce Because My Spouse Won’t Agree to One

This myth is a remnant from times when consenting to a divorce was sometimes necessary. Today, this is not the case. Even if one spouse doesn’t want to divorce, or doesn’t agree that the marital relationship is broken, the court will still grant a divorce as long as one spouse believes the marriage has ended or is no longer tenable.

If you want an uncontested divorce – where you and your spouse agree to all the divorce issues – it is true that you will both have to sign divorce documents stating the terms of your agreement. If there are any terms you cannot agree to, a court will make those decisions for you. But, a spouse that does not want to get divorced cannot stop you from ending the marriage. As long as one spouse wants to divorce, there is no legal requirement that the other has to agree to it.

Myth 5: I Have a Common Law Marriage So I Can Get a Common Law Divorce

The chances that you are married by common law are exceedingly small, but the chance that you can get divorced by common law is precisely zero. This is true for three reasons. First, only a few states allow for common law marriages. Second, in the states that do allow common law marriages, the requirements to become married by common law are stricter than most people believe. And third, there is no such thing as a common law divorce.

Though the requirements for common law marriages differ from state to state, you’ll have to meet several criteria to be married. First, if you don’t live in Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas, or Utah, you’re almost certainly not married by common law. A few other states recognize common law marriages that were created before specific dates, such as 2005 in Pennsylvania, and 1991 in Ohio. Second, you and your spouse will have to be competent adults. Third, both of you will have to intend to enter into a marriage. Fourth, you will have to present yourselves to the public as a married couple.

Living together for a certain number of years, referring to yourself as a common law couple, or other people telling that you’re common law married doesn’t make you legally married. If you think you have a common law marriage, you’ll need to speak to an attorney to be sure. In the rare situation where you are married under common law and want to get a divorce, you have to go through the normal divorce process like everyone else.

Myth 6: I Won’t Have to Pay Child Support Because My Spouse and I Agreed

When it comes to your children, any agreements, statements, or plans for child support or custody you and your spouse make are always subject to the orders of the court. Courts generally defer to parental agreements about marital support and financial settlements but impose stricter rules when it comes to custody and child support.

When it comes to child support, for example, there is very little that is up to parental discretion. State laws establish formulas that determine who pays for child support, and how much those payments have to be. Courts have more discretion when it comes to making decisions about child custody, visitation, and parental responsibilities, but parental agreements about these issues are but one of the factors the court will consider. If a court finds that your agreement about custody is not in the best interests of your children, it will impose its own decision regardless of what you and your spouse wanted.

Pay Child Support

Myth 7: I Don’t Need a Lawyer

While it’s true that are not legally required to hire an attorney to help you when you get divorced, that doesn’t mean you don’t need a lawyer’s advice. The issues you’ll have to decide in a divorce can be complicated even if you are planning on an uncontested divorce, and managing the divorce on your own rarely goes well. A good lawyer knows how to guide you through the divorce process from start to finish, how to advise you about the choices that are available to you, and can protect interests you may not even know you had.

While hiring an attorney can be expensive, the cost may be less than you imagine. An uncontested divorce where you and your spouse agree to everything might involve little more expenses than an attorney’s consultation and the filing fee.  At the other end of the spectrum, the cost of a contested divorce can easily cost  $5,000 to $15,000 or more. If the divorce drags on and requires private investigators, multiple court hearings, or appeals, the costs can be significantly higher. Even if you do not think you can afford a lawyer, there may be low-cost of free legal service sin your area you can use. Contact your state or local Bar Associations for more information.

Myth 8: I Can Keep My Property If I Hide It

Even if you feel like your actions lead to a situation where you might not come out as well as you want in your divorce, trying to hide property from the court during a divorce is a guaranteed way to turn even a nasty divorce into something worse. The National Endowment for Financial Education reports that nearly one-third of people in a romantic relationship have hidden or been deceptive about financial issues with their partners. But, even if this is true for you, a divorce is not the time to continue the deception.

When you and your spouse get a divorce, even an uncontested one, both of you will have to complete financial affidavits that state your current financial circumstances. In that affidavit, you will have to detail your income, your assets, your debts, your expenses, and every other facet of your financial lives. An affidavit is a sworn statement made under the penalty of perjury. Perjury is lying when under oath, and is a crime in all 50 states. So, when you lie on your financial affidavit, you’re committing a crime.

Even if you’re not charged with perjury for lying about your finances or trying to conceal your assets, you can face significant penalties if and when a court discovers your deception. For example, if you try to conceal your assets during your divorce and a court discovers it, you could face fines or be forced to pay your spouse’s attorney’s fees. In some situations, courts have ruled that the hidden assets must be turned over to the other spouse even if the spouse trying to hide them would have been entitled to them had they been revealed as they should have been.

If you’re worried that your spouse may be trying to hide assets or distort his or her financial status, you need to talk to your attorney. An experienced divorce lawyer knows how to track down hidden assets and undisclosed financial details. Your attorney can also explain in detail how attempting to hide assets can negatively affect you and your divorce.

Final Word

Divorces are rarely easy, but you’ll never do yourself any favors if you rely on myths or wrong advice. A divorce ends your marriage, but it doesn’t end your life. While the emotional and personal issues you’ll have to confront during the divorce process are often difficult, there is no reason why you can’t approach your divorce as both an ending and a new beginning.

What horror stories have you experienced or heard about with the divorce process?

Mark Theoharis is a former attorney who writes about the intersection of law and daily life, covering everything from crime to credit cards. He mostly writes for legal publishers, marketing agencies, and law firms, but gets the occasional chance to publish fiction. When he is not writing, Mark restores vintage and antique typewriters, though his editors have made it quite clear that typed submissions are strictly prohibited.