Demystifying Divorce Misconceptions

Whether you are talking with your hair stylist, chatting with Aunt Barbara at the Thanksgiving table, or reading the comments section of a social media post, we are all bound to come across some of the many misconceptions that society has created around divorce when in reality, everything isn’t so black and white. Divorce is extremely fact-driven and family court judges have wide discretion resulting in strikingly different outcomes between cases with similar circumstances. With all of these moving pieces, we want to help set the record straight:

• Myth: Everything gets split 50/50 in a divorce.
• Fact: Massachusetts is an “equitable distribution” state, and there are many factors that the court has to consider in dividing assets and liabilities. Some of these factors include the length of the marriage, contributions towards the marital estate, and conduct of the parties during the marriage. Other circumstances that we have seen that have impacted the division of the marital estate are: if property is brought into the marriage by one party (pre-marital property) especially if the marriage is short term; the inheritance of a party that hasn’t been co-mingled with marital assets; and if one party has dissipated the marital assets and/or accrued excessive debt through gambling or expenses associated with an extramarital affair.

• Myth: Divorce is always contentious.
• Fact: Civil and even “amicable” divorces are possible, and we frequently assist these types of cases at our firm. Processes such as mediation, attorney-assisted negotiations, conciliation, and collaborative divorce help to put you in the driver’s seat to take control of the terms of your divorce instead of being at the mercy of a stranger (a judge), and to reduce conflict with your ex (which is super important if you will be co-parenting with them in the future).

• Myth: Moms usually get custody of the children.
• Fact: The court has to consider what is in the “best interest of the children” in rendering custody decisions. There was a time when mothers were the presumed custodial parent due to a historic “tender years doctrine,” but those days are long gone. With the rise of fathers’ rights groups, recently there has been a tendency to lean towards joint physical custody if possible.

• Myth: Kids can pick who they live with.
• Fact: A child’s wishes are considered in custody decisions, but they are in no way binding (unless the child is an older teenager). The older a child is, the more weight will be given to their expressed desires by the court. However, if the child is elementary or even middle-school aged, the court can and does render custody decisions and parenting schedules that are contrary to a child’s expressed preferences. In “high-conflict” custody cases, the court can utilize a Guardian Ad Litem and/or ARC counsel (Attorney Representing the Child) to assist the judge in making orders.

• Myth: Prenups are for the rich.
• Fact: Not only are the division of assets covered in a prenuptial agreement, but the division of DEBTS should also be included. You may not think that you have much that you want to protect when you are getting married, but not being on the hook for your spouse’s potential future secret spending is certainly enough to make the small investment in a prenuptial agreement now compared to divorce litigation expenses later.

This is not an exhaustive list of every single myth, or this blog post would be much longer. However, if you’ve come across some information that you aren’t sure about, or have questions about initiating your own divorce, we’re here to help! Send us an inquiry or email us at info@foundationsfamilylaw.com if you have any questions or to schedule a consultation.