Popular Myths and “Old Wife’s (and old Husband’s) tales”. It’s amazing how many people still believe and perpetuate some of the fantastic lore that surrounds divorce. Wild stories that pop up in the news, on television, misinformation, and isolated events often times perpetuate and fuel the below myths.
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NOTE: This information is solely the opinion of this writer. However it is advisable to confront and dispel myths, so ask these questions of your attorney before proceeding further!!
Be wary when someone tells you any of the below fairy tales:
- Living “pursuant to a separation agreement for a period of one year” automatically “converts” your agreement into a conversion divorce. (False. You still need to file a duly acknowledged and subscribed separation agreement with the County Clerk’s office and you still need to commence an action for divorce).
- Leaving the marital residence constitutes “spousal abandonment”. (False. In order to constitute abandonment a spouse must leave the residence and establish an alternate residence elsewhere for a term of one year without justification.)
- That Abandonment affects your right to equitable distribution property. False. Grounds for divorce, inclusive of spousal abandonment, do not affect property distribution. Absent a finding of egregious and unconscionable fault, property will be distributed equitably between the parties.
- That you should never leave the marital residence even under circumstances that require your safety or the safety of a loved one. ( False. Moving out of the marital residence to secure your physical safety is never wrong. (However, use of “self help” except under circumstances of imminent risk of physical harm is frowned upon and it is better to seek immediate judicial intervention in family Court, through the filing of a criminal complaint, or through a Supreme Court action and motion for an Order of Protection.)
- That spousal support is the same as alimony. False. Alimony is a payment(s) made to a third party on behalf of a spouse, whereas spousal support is much broader than that; generally, it is an award requiring a spouse to pay funds directly to the spouse for their support arising out of General Obligations Law Section 70.)
- That child support need not be paid if the custodial spouse refuses to allow you to visit with the subject children. (False. If you are paying child support and a spouse refuses to allow you to see your child then have your attorney file an application for custody, a transfer in child custody, or for an Order of Visitation)
- That you do not have to allow visitation if your spouse refuses to pay child support. (False) These two issues, while related, are treated separately. In determining visitation, while Courts frown on parents who fail to support their children, as far as visitation goes, the Courts will focus primarily on what visitation award will be in the best interests of the child.
- That in all circumstances an ante nuptial agreement or prenuptial agreement is never subject to attack. (False. There are several grounds to attack prenuptials, on grounds of unconscionable, unfairness, ambiguity and lack of representation by counsel.)
- That all parties can buy a “divorce kit” and get a divorce without cheaply without first consulting with an attorney. (False. You must always consult an attorney before filing anything.)
- That you are always entitled to an award of attorney fees as a matter of law. (False. In order to qualify for counsel fees you must apply to the court… the court requires that the party seeking relief have their attorney prepare an affidavit and attorney affirmation making a cursory evidentiary showing regarding many factors, and that you clearly state such relevant factors, including but not limited to the party’s need, inability to pay, ability of the other spouse to pay, and an inability to replenish wealth, and that a financial affidavit accompany the application, and
- That if your spouse threatened that if you leave him or her that he or she has automatic right to title of the residence and the children. (false)
- That if you are verbally abused you have a right to sue for cure and inhuman treatment. (Not always true. If you tolerate verbal abuse for over five years and plead nothing else you do not have grounds for divorce)
- That all marriages can be annulled. ( False. Marriages can be annulled but under very limited statutory circumstances, such as fraud)
- That husbands are not entitled to spousal support (False, spousal support is gender neutral)
- That if you have been mistreated for twenty years you have more rights than if you have been cruelly treated for five years. (false)
- That if you have a lawyer you do not have to appear in Court (False. The Court will require your attendance unless the Court has agreed to allow you to appear telephonically)
- That if you tell your lawyer the financial aspects of your matrimonial case the lawyer is mandated by rules of attorney client confidentiality not to divulge your financial circumstance so that the Court. (False. An attorney is obliged to certify to the contents of any financial affidavit or representation you make to the Court)
- That the mother is automatically entitled to custody especially if she is breast feeding.
- That a spouse is always entitled to visitation no matter what circumstances exist. (False)
- That you can go to Family Court without a lawyer and get a divorce.
- That if your husband cheats on you can sue the women he is having an affair with for alienation of affection and get all of the assets.
- That you are entitled to 50% of the marital assets as a matter of law, rather than “equitable division of property.”
- That the husband can maintain control over all of the financial aspects of your case and that you have no right to anything in his name. False: Know the financial circumstances of your marriage.)
- That your spouse’s employment including pension benefits belong to the employed spouse. (False .Consult an attorney)
- That the spouse is automatically entitled to health insurance after the Divorce action. (False.)
- The “X” factor….Not knowing the cost of your divorce…(False. A competent attorney should be able to estimate what your divorce is likely to cost given certain sets of circumstances. Always ask this question of your attorney before signing a retainer agreement.
- That your attorney handles everything so you do not have to obtain copies of your file. (False. You are entitled to a copy of all correspondences and pleadings relevant to your case and your attorney should provide copies of same to you automatically)
- That divorces take forever with no end in site. (False. New Court Rules and Guidelines encourage the court system to expedite the handling of your divorce.)
Warning: The information contained herein is not intended to substitute for legal advice from your own retained lawyer in new york state. This article is merely informational in nature, and is based upon one attorney’s knowledge of the practice of family law, matrimonial law, domestic violence, child custody, child support and orders of protection.
Retain counsel before you do anything to affect your marital status and follow the advice of the lawyer you retain, not what is written herein.