Myriad sources inspire and fuel pervasive myths about the divorce process. Whether the origin is a cousin of one's best friend's brother-in-law, a co-worker, or one of many advocacy... |
by Charles M. Goldstein
Myriad sources inspire and fuel pervasive myths about the divorce process. Whether the origin is a cousin of one's best friend's brother-in-law, a co-worker, or one of many advocacy groups, false beliefs abound. All lawyers cannot be expert in the area of family law, but it is helpful to be familiar with common false notions expressed by those facing the legal system. Dispelling these misconceptions can help educate those involved in this often frightening and unknown process. Some of the predominant myths, which can incorrectly influence potential litigants' decisions, are as follows.
Myth #1: "It is legally advantageous to be the party initiating the divorce process."
Individuals are frequently concerned that the court will favor the party petitioning for divorce (the petitioner), as if that party will achieve special relief for starting the process. In fact, the party initiating the divorce has no special rights over and above the responding party (the respondent) (except to initially determine venue, as described below). Even if one assumed that the respondent answers solely to the petitioner's allegations, ours is a "no-fault" state. Therefore, the court is generally required to disregard alleged wrongdoing, unless it affects the best interests of the children. The burden of proof required in the proceeding is unaffected by the assignment of the labels of petitioner and respondent.
Individuals are frequently concerned with the "petitioner" and "respondent" labels, which merely determine placement of the parties' names on the caption of the pleadings. In one case, our firm had a client who was extremely concerned that he be referenced as the petitioner, as his culture frowned upon the status of one being sued for divorce. It was nearly impossible to convince this client that not only was the label virtually meaningless, it could not be changed once the process had been initiated. There are virtually no advantages to being listed in the caption as petitioner in a divorce (unless one argues that an advantage exists at the trial stage, where the Petitioner has the first opportunity to present his or her case).
However, there is one advantage to "winning the race to the courthouse" by initially serving the divorce petition. If the parties reside in different counties, the petitioner determines the venue of the case by serving a summons and petition captioned for a particular county. Although the respondent can request a change in venue, he or she must convince the court that the venue should be changed. (If the parties reside in the same county, the divorce must be initiated in that county.) This procedural consideration can be critical because judicial enthusiasm for such issues as joint physical custody and maintenance awards varies substantially from county to county.
Though there is no legal advantage to being labeled petitioner rather than respondent other than venue considerations, there may be a significant financial disadvantage. It is conventional for the petitioner's attorney to draft a marital termination agreement if the parties agree on all issues involved. Further, the petitioner's attorney is conventionally expected to draft the judgment and decree, which serves as the document finalizing the parties' divorce. The petitioner incurs additional attorney fees for these services (though having one's own attorney initially draft a marital termination agreement can be worth the extra cost-particularly when the opposing attorney is less than thorough in suggesting revisions and supplementation). Thus, you may respond to an individual expressing the "first-to-file" myth that it may be a financial disadvantage to be the petitioner in a divorce action.
Myth #2: "Leaving the marital home or other property may be viewed by the court as abandonment of equity in the property."
Many individuals confuse temporary possession with ownership. They believe that by abandoning a homestead or property, their equity in the property may be somehow diminished or lost. While the court may award permanent title of property to the individual utilizing it at the time the matter is heard, this award will be offset by an award of other property or cash settlement, in order to achieve an equitable division.
It is erroneous for a court to reduce a person's equity in property based upon temporary circumstances and use of property. To guard against threat or wanton destruction or dissipation of property, it is prudent for an individual exiting the homestead to videotape its contents and to copy documents prior to leaving (as well as remove family heirlooms and other irreplaceable items of a personal nature). However, there is no reason to believe that he or she will be short- changed of equity in a final resolution, because of "abandonment" of property.
Courts are concerned with preserving consistency, vis-a-vis custody and residence of children. The parties should be advised to seek consultation with mental health and legal professionals regarding the appropriateness of continued residence where children are involved, without concern for a loss of equity accrued during the marriage.
A related concern is whether it may be appropriate to change locks on the residence if the other spouse has established a separate residence. Although technically not legal without a court order, it may be advisable (and it will likely be endorsed by the court) if there are safety concerns. Unless there is a court order prohibiting his or her presence or granting possession to one party exclusively, police cannot arrest a spouse for merely being on the homestead property. This type of court order can be the result of a domestic abuse petition or a temporary relief hearing.
Possession and ownership are similar terms that many lay people do not differentiate. As a result, this distinction requires careful explanation. Potential litigants should be assured that there is no formal legal claim for abandonment of real estate or other property in the family law process.
Myth #3: "Title in property is dispositive in determining a property award."
There is a common misconception that being the title holder of property is somehow determinative of an award by the family court. In actuality, any property acquired during the marriage, other than traceable premarital holdings, inheritances, or gifts received by a specific party (which can also be divided in part if unfair hardship will otherwise result), is subject to division by the court. The fact that title is in the name of only one party can be inconsequential. The court generally disregards title in dividing property.
However, courts may take title into account when determining whether a particular asset has maintained a nonmarital component. For example, retaining funds brought into the marriage or received by bequest or gift in an individual account can serve as evidence that the party intended to preserve the nonmarital nature of the asset.
Myth #4: "Support obligors have no rights" and "The system can't deal with delinquent obligors."
Despite the common belief that child support obligors are the maligned victims of their ex-spouses and/or the legal system itself, there are, in fact, several protections designed for the support obligor. First, there is abundant statutory and caselaw that protects the income of the obligor from an otherwise greater child support obligation. Examples are deductions for children born prior to those for which the support obligation is determined, limitations on consideration of bonus and overtime income, and a potential credit for marital debts being paid in lieu of child support. In addition, the child support guidelines limit the level of support and provide for a decreased percentage for those with low income. Though obligors frequently complain that guideline child support is an unconscionable drain of their limited resources, the child support guidelines are not designed to require the obligor to foot the entire bill for maintaining the household.
Another common complaint is that the system is too soft on child support obligors. Truth be told, there are self-employed individuals who have "inaccurate" or no tax returns and are able to dodge the system, making life difficult for child support obligees and their children. On the other hand, there are many protections built into the system for the child support obligee. These include the potential suspension of an obligor's driver's license due to delinquent payments, interception of tax refunds, liens on motor vehicles, suspension of recreational licenses, and imputed income where it is demonstrated that the obligor is acting in bad faith by self-limiting income, among others. In addition, the law allows a lien on a homestead for unpaid child support, prioritizes child support withholding over other garnishment of wages, and does not allow discharge of support arrearages through bankruptcy. One should not be discouraged about the collection of a child support obligation until these avenues have been investigated and exhausted.
Myth #5: "The trial court hears `the full story,' determines the `truth', and metes out justice accordingly."
Many of the facts and circumstances important in the eyes and mind of the client are likely to be of limited importance to the court. It is unrealistic to assume that a trial court judge can unravel the minutiae of the dynamics that resulted in the parties' current circumstances. The issues are simply too complex, and the court lacks time. Further, the value judgments required in reaching a "fair" decision would be unfair to one or both parties. The court is generally left to evaluate a "snapshot" of the parties' current situation and to apply the law accordingly. There are a few exceptions, such as maintenance claims (for which the courts do take into account educational background, employment, and missed opportunities during the marriage) and tracing assets claimed to be nonmarital.
One spouse's claim that the other has wasted the parties' assets by frivolous purchases during the marriage is likely to be inconsequential to the court's final resolution. As a client of mine was greatly dismayed to learn, premarital funds expended on legal fees for the spouse's criminal attorney for repeat drunken driving offenses will not be ordered reimbursed to the party who spent them.
To the chagrin of some parties, courts have very limited criteria with which to punish wrongdoing or to reward the most admirable behavior. Ironically, a party trying to efficiently dissolve an unproductive marriage may face high attorney fees due to his or her spouse dragging out the process, unwilling to see the matter finally resolved. However blameworthy or detestable parties' behavior may seem, it is rare for the court to award attorney fees based upon such behavior.
Many individuals believe that if they are "in the right," their position will be redeemed by a court award of attorney fees payable by the other party. Some harbor the mistaken perception that an attorney representing a family law client will rely on a court award for compensation. As an example of the court's resistance to attorney fee awards, I once represented an individual who was harassed by an ex-friend, who made intrusive and threatening statements in person and by correspondence. Although the matter proceeded to an evidentiary hearing and an appeal involving several constitutional issues raised by the harasser, the victim was awarded a meager $250 in attorney fees to reimburse her for the thousands expended in the trial and appeal process.
One could argue that the courts should more frequently award attorney fees; however, it is too often an overly complex decision as to which party is more at fault in protracting the proceedings. Fairness is only one of several criteria applied by the court (the parties' respective incomes and expenses are two of the other criteria). Whether a party has taken a position that is clearly wrong is seldom obvious; the court reviews contrasting versions of "the truth" and is rarely presented with a case that allows for a definitive conclusion. The courts may fear that ordering attorney fees to be reimbursed will only serve to lengthen the proceedings by encouraging the party receiving attorney fees to unnecessarily continue the litigation. Court awards of attorney fees in the family law process are unusual and most often occur in situations in which there is an extreme disparity of incomes between the parties.
Myth #6: "A legal separation is commonplace" and "The separation date of the parties is a necessary component of the court's calculation in an award of property."
Parties rarely seek a legal separation. However, when a party does file for a legal separation, the respondent frequently counter-files for a divorce (marital dissolution) and thereby transforms the process into a divorce. A legal separation is usually obtained for religious or moral reasons, or to achieve other legal means while postponing a final divorce adjudication. Deductibility of maintenance can be accomplished through a stipulated temporary order or other document causing a legal separation to generally be unnecessary for that purpose.
Some litigants perceive that a legal separation is a necessary procedure, or that it serves as an intermediate step at a lower cost than a full divorce. To the contrary, legal separation usually serves to increase the costs of the divorce process unnecessarily.
The same rules generally apply to legal separation as in a marital dissolution. Thus, the parties could potentially re-litigate all of the issues involved in a divorce that were already resolved through the separation process. Although a legal separation can delineate a division of debt and property, the trial court may disregard the treatment of debts and property when it makes a final determination of those issues in the divorce process.
The date of physical separation of the parties is likewise not determinative; the court only utilizes the parties' separation date in determining the apportionment of property in unusual circumstances. In fact, a pension plan of a spouse may be divided as of the divorce, even if separation occurred several years prior to initiation of the divorce. A practical consideration for this rule is that parties frequently separate more than once prior to the commencement of the divorce.
Parties often make the mistake of purchasing real estate after the separation but before the judgment and decree of divorce is final because they erroneously believe that the real estate and other property purchased after the physical separation will not be considered by the court in the division of property. In fact, any real estate purchased before the judgment and decree becomes final is partially owned by the other party by virtue of the ongoing marriage (though a valid nonmarital claim could be made if the property was purchased after the valuation date set by the court, as such purchases are presumed to be nonmarital). Equity in newly purchased property could potentially be awarded to the non-owner spouse. The parties are well advised to defer any purchase of real estate until after the divorce process has been completed.
Myth #7: "Attorney fees for a divorce are generally proportionate to the assets involved."
Division of property, while an essential part of the divorce process, is not always the major issue between the parties. Custody and visitation, division of marital debts, insurance coverage, and transfer payments in the form of child support or spousal maintenance are often major issues that exhaust the parties' financial resources when they cannot agree. Mistaken attitudes about asset division can be costly, even in small cases. A prime example is a party who believes that a principle is at stake and will fight regardless of the contrary application of the law. In extreme circumstances, parties have been known to argue over a worthless family business due to their pride in the enterprise. In such cases, attorney fees can serve as a functional limit on the parties' assertions of non- meritorious claims. Such claims only serve to waste the parties' resources and the court's time. On the other hand, some parties dividing a substantial marital estate manage to efficiently divide their assets with minimal attorney fees. These individuals appreciate the wisdom of avoiding litigation and unnecessary use of attorneys.
An attitude some consider clever, but in reality is foolish, is as follows: "I would rather pay $2,000 to my attorney to argue a point of principle than agree to pay $200 to my spouse." This shortsighted approach overlooks, among other things, the possibility that the other spouse will contribute to college costs and other necessary expenses of the parties' children. Resources allocated to the spouse rather than to the attorney may also lessen that individual's need for additional property or support.
Numerous factors affect attorney fees, such as whether the client tries to micromanage the case and the degree of obstreperousness of the opposing attorney. Unfortunately, some practitioners "stoke the flames of conflict" by encouraging frivolous argument and utilizing all possible leverage to protract the process. A good family law attorney provides laudable service by controlling fees where possible, without compromising on the final results. The size of the estate, while one factor in determining attorney fees, need not correlate with the overall fees incurred.
Myth #8: "It is always best to simplify the process for simplification's sake and use only one lawyer whenever possible" and "Lawyers make the process more complicated than it needs to be."
There are those who believe that the parties are best served by utilizing one lawyer, or even a paralegal service, to draft the documentation for a simple divorce. In addition to the ethical prohibition against dual representation, practical considerations make this philosophy ill-advised.
In one telling experience, I observed the result of a divorce performed for the parties by one attorney. The parties agreed to continue occupancy of the homestead together beyond the divorce, despite the fact that the payments required were beyond their combined means. The property became very difficult to sell, and the parties were completely unable to co-exist in a charged atmosphere following the divorce. To make matters worse, the wife was expecting to receive her share of her husband's retirement plan from the homestead sale proceeds. The home could not be sold before the parties had defaulted on several payments, thus causing a foreclosure proceeding. Instead of enjoying the benefit of an equitable settlement, there were no proceeds to compensate the wife for releasing her right to her equity in the husband's pension plan. Rather than the simple and efficient divorce they believed they would obtain by utilizing one attorney, the parties spent substantial attorney fees to pick up the pieces of a failed plan. Nor could the wife hold the attorney clearly responsible for her failed claim - he was not formally representing her interests, as opposed to the husband's. (The attorney was unethically attempting to assume a dual role of mediator and attorney.)
There are numerous ramifications of divorce, which include distributions of pension plans, insurance coverage, division of assets, and preferred approaches to tax issues. Attempts to simplify the divorce for simplicity's sake, in particular by using one attorney or a paralegal service, seldom pay off for the parties. Instead, the investment in a second attorney, to review the proposed agreement and to validate that the desired goals are being achieved, is extremely cost-effective and often helps to avoid complications that could require court proceedings following the divorce. (In addition, it lessens the possibility of later regret that one was taken advantage of for not being represented in the process.)
Myth #9: "Someone 'wins' a divorce."
The goal of the divorce process is to serve the best interests of the children, sever the parties' relationship, divide assets, and apportion debts, insurance costs, etc., allowing the parties to pursue a separate existence in an equitable and secure manner. In most circumstances, this is not consistent with a declaration of "victory" by either party. Generally, both parties have substantially less material wealth than they started with prior to the divorce. Occasionally, there are situations in which one party pursues a remedy, such as permanent maintenance, which can result in substantial gain for that party. A more frequent outcome is a compromise arrangement, such as a set period of maintenance and a waiver of modification of amount and/or duration of payments.
A common goal of the family law attorney is to reach a reasonable resolution, which minimizes risk for the client and provides for a secure and predictable future. There is a general misperception that there is a clear "winner" in the divorce process. Most importantly, custody "fights," as they are too often referenced, do not serve to better the family's overall circumstances. Instead, the result is increased bitterness and emotionally damaged litigants and children. The Legislature has recognized and addressed this issue through the recently passed "parenting plan" statute that allows the parties to resolve custody and visitation issues in a manner that maximizes the involvement of both parents and seeks to reduce the number of costly legal battles.
If there are any real winners in the process, those who maintain positive relationships with an ex-spouse/co-parent and their children are the victors. Enjoying future life events (such as weddings and college graduations), without the bitter taste of animosity, is its own reward for those with the foresight to control negative feelings and minimize disruption to the children. Though few parents fulfill the common child fantasy of parents re-uniting, it is not an unreasonable expectation that parents will make efforts to share their children's triumphs in peace and pride.
Myth #10: "Mediation will never work in my case" or "It would appear weak to suggest mediation." Mediation, in fact, is well suited to the majority of divorce proceedings. Its desirability lies in the self-determination of the parties, the expediency of the process, reduced cost, and the potential that it will build new avenues for communication for the parties to resolve future disputes related to their children. Mediation impels the parties to explore creative resolutions that can benefit both parties, including remedies outside the boundaries of court authority. Examples are creative divisions of property and debt that are tax-wise (but not statutorily prescribed), or even admission of guilt and an apology.
Complex matters are sometimes better suited to mediation than cases involving only one or two significant issues because the opportunities for trade-offs are more plentiful and negotiation can be more effective. In addition, studies have shown that the parties are more likely to abide by the results achieved in mediation than by a court order which results from a contested hearing. The parties are also less stressed by this process (unless it fails), which is inevitably more expedient and cost effective than litigation. It is a sign of strength and foresight that a party in the divorce process makes an effort to mediate prior to resorting to the litigation process. Mediation can even be performed effectively by non- attorneys, such as an accountant and psychologist team.
Mediation can be particularly helpful when the parties are at different emotional stages relative to the loss of their marriage. The non-filing party may be at an earlier stage of the grieving process, causing disagreements that are not legally relevant, but that can exacerbate the legal process. Parties who can agree to disagree on certain issues and maintain the ability to communicate and resolve issues through mediation make a positive step toward reaching an overall resolution. Potentially disastrous consequences of a high-conflict divorce can be avoided through mediation. The court system increasingly recognizes this through such requirements as notification in a dissolution summons of alternative dispute resolution procedures.
Myth #11: "There is a particular age at which children may dictate their custodial arrangement."
"At what age can children decide with whom they want to live after a divorce?" is an all-too-common and misinformed question. In actuality, the child may be asked by social services (and on rare occasion by the court itself) about his or her feelings regarding each parent and their respective living environments. Children of advanced age may voluntarily express a preference to live with a certain parent. However, there is no rule that a child over a certain age may determine his or her future living status.
Instead, the court considers, to a degree, an expressed preference determined by the age and maturity of the child, as well as the reasons provided by the child. A mature 12-year-old may be taken more seriously in his or her preference than a 16-year-old who has a mental or emotional infirmity and/or expresses his or her viewpoint in an immature or irrational manner. Further, courts are cognizant that children approaching majority are likely to "vote with their feet" and effectively determine their primary custodial parent. Courts are hesitant to resist the preference of a child who is likely to run away from the home of the other parent.
Myth #12: "The children are doing great!"
According to one study, 37 percent of children from divorced homes were psychologically troubled and manifested moderate to severe clinical depression, even five years after finalization of the divorce. Children deprived of frequent access to their fathers tend to show diminished self-esteem, lasting many years after the divorce. Further, almost one-half of children continue to show ongoing negative consequences from having gone through the divorce experience. The majority of children who have experienced a divorce between their parents show clear signs of emotional, psychological, behavioral, and social distress. Many have significant adjustment problems and show lower academic achievement when compared with children from parents who have not divorced.27
Counseling is the key to lessening the emotional harm to children experiencing the divorce process. Whether individual or family, quality counseling will pay dividends far beyond the investment of time and funds expended. Further, self-help is encouraged and recommended. For example, local author Vicki Lansky has written a book entitled Divorce Book for Parents, which is extremely informative and practical.
Bonus Myth: "Divorce attorneys live an intolerable existence."
A family law practice provides variety and gratification. Though the purpose of representation may be to gain advantages for one's client, the overall objective of the process is to achieve a result that will serve the interests of justice, long-term security for the parties, and the best interests of their children. While many individuals, including attorneys, perceive the day-to-day existence of a divorce attorney to be bitter, thankless, and oppressive, it can be a fulfilling and rewarding experience to represent individuals who are facing this difficult and arduous process. It is not without its challenges, but the rewards of impacting a child's life in a positive way can be indescribable.
The family court bench and bar, as well as the Legislature, actively seek solutions to the enigmas that plague family dynamics. Bar association committees, task forces and various advocacy groups continuously suggest reforms to improve the family law process. The result is a system that has made great strides in achieving justice and, more importantly, is increasingly respectful of children and their needs.
I hope that the above recitation helps to illuminate some of the dark corners of a process feared by some and detested by many, but hopefully respected by colleagues who have oft been heard to comment, "I handled a divorce once - I'll never do that again."
ABOUT THE AUTHOR: Charles Goldstein practices family law in Minneapolis, Minnesota. He is committed to providing accessible, effective and reasonably priced family law litigation and mediation services. For a free consultation, call 952.449.5299. http://www.fmlylaw.com
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