|
Divorce:
Toppling 12 Myths Of Marriage Dissolution
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
case law 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 |
