10 Common Divorce Myths Debunked
Like many complex and fact-specific legal matters, divorce is subject to many myths, misinformation, and questionable “advice.” As our attorneys at Hendershot, Cannon & Hisey, P.C. know from speaking with clients throughout Texas about their family law concerns and questions, a lot of this has to do with confusion over how divorce works, the laws in place, and the sheer amount of misinformation that can be circulated by non-attorneys and the media.
Because having the facts and right information is so critical to understanding the Texas divorce process, what to expect, and how to best protect your rights, our legal team has debunked some of the most common divorce-related myths:
- Divorce always leads to disputed battles – This is one of the most common myths about divorce, and it stems largely from sensationalized stories of celebrity divorce cases, or anecdotes that are more myth than fact. While divorce can give rise to many issues that demand resolution, that doesn’t mean those issues will become, or have to be, major points of contention or cause for heated disputes. Even when spouses don’t agree on certain issues, many are able to work together in order to compromise and reach agreements out of court, which ultimately saves time, stress, and expense associated with litigating. Disputes and trial do happen in legal matters as significant as divorce, but they aren’t always the norm.
- Whoever bought the property keeps it in divorce – This assumption, which simply isn’t correct, may stem from confusion over matters of property division and how assets and debts are divided between spouses. While the question of who purchased the property is an important one (especially when the answer indicates certain property was purchased by one spouse prior to marriage), it doesn’t mean the individual who bought a particular asset will keep it in divorce. That’s because Texas consider any assets purchased during the course of the marriage by either spouse to be community property subject to division. Proving otherwise (meaning, proving that an asset is separate property that shouldn’t be divided, or that a spouse has at least a partial community property share of a certain asset), requires one to overcome the community property presumption. This may come in the form of showing how once community property became separate property, such as when separate property funds are comingled or when spouses help pay for or maintain the upkeep of an asset. Determinations over who keeps what are critical during property division proceedings, and they often require the insight and experience of proven attorneys, financial experts, and techniques like forensic tracing.
- All property is split 50-50 in divorce – This is another common myth relating to property division. Although it’s a far cry from saying one spouse or the other will get everything in a divorce, it isn’t exactly accurate according to today’s divorce laws. In Texas, for example, only assets classified as community property are subject to division in divorce. Additionally, Texas Family Courts will distribute those assets in a manner that is “just and right,” not necessarily as an equal 50-50 split. What’s more, there are many ways spouses can come to mutual agreement regarding a disproportionate award of assets, such as when one spouse wants to keep the family home and must offset the other spouse’s share of assets by awarding other property, or when spouses look to offset alimony payments by awarding other assets instead.
- Spousal support is always awarded to the wife – Spousal support, or spousal maintenance / alimony, has long been a fixture of divorce mythology; usually in statements which claim a wife will always be awarded support, and husbands never will. The truth is that divorce laws don’t consider gender when making determinations over alimony. In fact, awards for spousal support, whether they’re temporarily awarded during divorce proceedings or issued post-divorce, take only the economic realities of each spouse into account. If a husband earns far less than a wife, they may be entitled to support. Additionally, spouses can reach unique agreements on their own to address how alimony may work, sometimes by awarding a lump sum payment or offsetting support payments by awarding other property, among other options.
- Most divorce cases go to court – While divorce proceedings do require formal legal work to be filed with the court, there is no basis for saying most divorce cases go to trial. In fact, most divorce cases are resolved out of court through negotiation, communication, and compromise between spouses, or through avenues like collaborative divorce or mediation. The costs, strain, and time associated with trial make most spouses keen to avoid taking cases to court, except in certain situations where disputes are warranted and one’s rights must be asserted.
- You can avoid child support payments – Kids are always a primary focus in divorce cases where spouses have minor children. As such, child support payments are established and regulated by statutory law, not the whims of parents or the court. While there are numerous and varied arrangements for custody and visitation, parents are generally obligated to provide the financial support their child needs. This means parents who aren’t awarded primary custody will need to comply with making child support payments, established using a calculation outlined by law, or face legal consequences and enforcement actions.
- Committing adultery means you’ll lose everything – This myth has a basis in times when fault-based divorces were the only option, or carried greater significance than they do now. Today, married couples can divorce on a no-fault basis, which means they don’t have to claim one spouse is to blame. While adultery in and of itself doesn’t mean a spouse will lose all their assets, their children, or their rights, it can create potential for some legal impact, such as when marital assets are wastefully dissipated by a spouse to support another relationship, or when adultery coincides with domestic violence or conduct that endangers children.
- Children can choose who they live with – Although courts can take a child’s preference into account when making determinations over child custody arrangements (usually when a child is old or mature enough to do so), the opinions of children aren’t the end-all, be-all in custody proceedings. That’s because courts consider numerous factors when awarding custody; from each parent’s ability to provide and care for their child to their living arrangements, work schedules, and financial resources, among other factors, in order to ensure the best interests of a child are met, even if the child lacks the ability to understand exactly what that means.
- I can have courts change orders I’m not happy with – While there are options for pursuing modifications of certain court orders, there is certainly no precedent that a person can simply change any aspect of their divorce decree on a whim. In fact, certain factors in a divorce are generally not open to dispute or modification after finalization. This includes property division agreements (with rare exceptions, such as the discovery of hidden assets). For matters that can potentially be modified after a divorce, such as child custody arrangements or spousal support, spouses must agree or the petitioning party will have the burden of proving a substantial change in circumstances that would warrant the modification (i.e. moving to a new state, domestic violence, job loss, major medical issues, etc.).
- I’m better off without a lawyer – This myth could have major consequences when taken to heart, as the divorce process is filled with numerous legal issues, disputes and challenges, and the potential for challenges that require skilled and experienced attention. While some may believe that handling a divorce on your own can save time and costs, the reality is that a DIY divorce can ultimately cost you more when issues aren’t appropriately handled or resolved. When initiating a legal proceeding as serious to one’s future as divorce, the help of a proven advocate can make all the difference.
Have Questions? Call (713) 909-7323
Divorce is a significant legal and personal journey, and a process that has many implications for the future. It’s why there’s little substitute for having correct and accurate information, as well as the support, representation, and counsel to help you make informed decisions and seek the best possible resolution.
At HCH, our legal team is committed to educating clients about their rights, Texas divorce laws, and what we do to help guide them step-by-step along the way. If you have questions about divorce, or wish to discuss a potential case, call (713) 909-7323.