Donald L. Pitman III, a family law attorney at Barron & Stadfeld of Boston, wrote the following article in his Legal Notes column of the Georgetown (Massachusetts) Record:
The very mention of the word “divorce” fills many with sensations varying from dread to shame. Scenes from movies such as “Kramer vs. Kramer” have reinforced the angst many feel when faced with the option of staying in a bad marriage or getting a divorce. However, much of what people believe to be true regarding divorce has changed since the 1970s, when one person had to be “at fault” in order to file for divorce. Now, “no-fault” divorces allow couples to get a divorce when the marriage has suffered an “irretrievable breakdown.”
Here are some of the most prevalent “myths” I’ve encountered over the years as a family law attorney. Every divorce, like every family, is different; however, many of these questions and issues are common.
Myth: If I leave the marital home, I lose all rights to it.
Fact: There are 18 factors that are considered when dividing property between spouses. Nowhere does it state that a person who leaves the marital home loses any rights to it. In fact, there is a trend to consider the fact that a spouse who leaves the home to keep peace in the family deserves some credit for doing so.
Myth: The house is in my spouse’s name, therefore he will get the house.
Fact: The fact that a house is titled in only one spouse’s name does not matter. Generally, any assets that someone has when they get married are considered part of what can be divided for the purposes of divorce, no matter where they came from.
Myth: Once the divorce is done, it’s done.
Fact: Not exactly. Some terms of a divorce agreement can be changed on a showing of a “substantial change in circumstances,” such as one party moving far away, spending less time with the children, the loss of a job or a large promotion that results in a significant increase in income, or as children get older, go to college, or move out of the house.
Myth: My spouse doesn’t need to support me or our children because he’s re-married.
Fact: Child support is not optional in Massachusetts. While the court does consider the existence of a second family, it will do so only after making sure the first family is taken care of. The Child Support Guidelines are a uniform way to ensure that children are provided with an appropriate amount of financial assistance. They can be found at www.massdor.gov.
Myth: My spouse had an affair, so he won’t get anything.
Fact: The fact that one spouse had an affair can be an embarrassment and, sadly, a stumbling block to resolving a case, but it will likely not make a substantial difference in the division of assets. Among the many factors considered in the equitable distribution of property in a marriage is the conduct of the parties (e.g. having an affair). This factor does not determine how assets will be distributed. However, if it can be shown that one spouse spent significant amounts of money on the affair, the other spouse would be credited for what was spent on a dollar for dollar basis.
Myth: Just like in the movie “War of the Roses,” divorce is inherently a mud-slinging battle.
Fact: While divorce can become a battle, it doesn’t have to be. There is a growing trend among lawyers to offer mediation as a way to bring people to an agreement by using a third person who helps guide the process. More recently, some lawyers have started to work together with their clients to find a resolution to their divorce through what is known as collaborative law. Collaborative law includes the use of specialists that both parties agree to work with — and pay for together — that help them deal with issues regarding the children, each other and the allocation of their finances. Both mediation and collaborative law allow the parties to help guide the process along, and aims to avoid the damage that can be caused through the litigation process. Finding an attorney who has experience in mediation or collaborative law is the key to making this successful.
SOURCE: Georgetown Record