Divorce law contains a lot of myths. More than any other area of law, IMO. I think this is because most people know someone who has been divorced so it’s an area of law that is familiar and accessible to non-lawyers, unlike maritime law or class action securities litigation. I mean, I don’t even know what maritime lawyers do. But just like an old wive’s tale, divorce myths shouldn’t be believed. And today, I’m going to dispel them for you.
In preparing to write this article, I took to Instagram and asked my followers about some of the divorce myths that they had or have heard from others. I wanted to make sure that I was addressing not only what I have seen from my clients, but what others are hearing as well.
So, without further ado, here are the divorce myths you need to stop believing today. Seriously, stop.
- Women do better than men in custody and financial issues;
- Children get to decide which parent they want to live with at a certain age;
- Lawyers just want to take all your money and are the reason that your case is difficult;
- Divorce has to be contentious;
- Telling it to the judge is going to get you the vindication that you want and deserve; and
- Your life is over.
Divorce Myths #1: Women do better than men in custody and financial issues
I’m hear to tell you that, no matter what your divorced friends say, it is a divorce myth that women do better than men in custody cases and divorce settlement. Don’t believe me? Disappointed? Let me explain why I’m right.
First, in general, the divorce and custody laws of the United States are gender neutral. Meaning that they are based on either party being able to prove a series of things to ultimately win their case. The words mom, dad, husband, wife, female or male do not appear and have no affect.
I do say this with the caveat that other countries may be different. So, if you are one of my international readers (hi! and thanks for checking me out), your laws may include gender terms. If you are worried about how these may apply to your case, I suggest that you should speak to an attorney in your area.
I don’t hear about this one from my own clients, because, you know, I’m a woman, and they think I’d be offended. And, if you didn’t know that I was then you really need to check out my About Me page. Or, maybe it’s good that you were unaware because it means I’m providing gender neutral advice, which is my goal. However, I do see it a lot on Instagram, both in my comments and in others’ accounts. That’s why I really wanted to address this divorce myth here, in case you were believing it too.
It is a divorce myth that mothers automatically do better in custody cases
With that being said, let’s first look at the role of gender in custody cases. Again, the law doesn’t say anything about gender. There is no presumption in the written law that mom is automatically going to have primary custody of the kids simply because she has lady parts. It just doesn’t exist.
Now, do I think some judges could carry a bias that a mother should have substantial custodial time with their children? Sure. Judges are human and they have opinions and carry stereotypes just like the rest of us. This is another reason to come to a custody agreement, because you take those third party opinions out of your case.
However, I think that those opinions are changing for the better. In the last ten years, I have seen a huge increase in parents that equally share custodial time of their kids. This is because societal thoughts about the roles of fathers are also changing. It used to be that dad made the money and mom watched the kids. Now I see moms and dads doing both. And the courts are recognizing this as well.
So, if you are a dad reading this, don’t be discouraged that you aren’t going to get time with your children just because of your gender. And mom, you aren’t going to automatically get what you want for the same reason. Both parties need to prove why it is in the best interests of their children to have the custody schedule that they want.
Related: Child custody terms that you should know
Related: 7 tips for preparing a custody agreement
It is also a divorce my that property division will favor the wife.
Money and gender roles are a sticky issue, both during marriage and during divorce. I recently read an article about how husbands and wives are more likely to misreport their incomes when the woman out earns the man in the relationship. And this scenario is becoming more common. In a recent survey, 38 percent of wives make more money than their husbands. This number is up almost 10% from a few years ago. So again, money and gender are tricky issues to navigate.
While these may be difficult issues for clients to deal with, I think they are less tricky for the courts. In some states, the property division is equal no matter your income or gender. Others, like Pennsylvania, look at a myriad of factors to determine an appropriate property division.
However, none of those factors are gender. I explain it to my clients like this: whoever is going to recover financially from the divorce faster is going to get less in the division of the marital property. Plain and well, maybe, not so simple.
How gender neutral property division works in real life.
So, if the wife makes more money and has better benefits at her job than her husband, she is going to get less of the assets. Conversely, if the wife has not worked in 30 years and the husband is the CEO of a company, she is going to get more. If both spouses make similar incomes and have similar prospects they will get an equal amount of the marital estate. It has nothing to do with gender, it has to do with their financial outlook.
I think people think gender plays more of a role in property division than it does because, while the number of female breadwinners is increasing, it is still not close to equal or the majority. So, it follows that the woman, who is still likely to make less, is going to get a larger financial settlement. Again, it’s not because of her gender, it’s because of finances.
We can talk about what we can do as a society to increase women’s abilities to earn more and move up the corporate ladder in another blog post. However, for now, remember gender does not directly affect your property division, future financial possibilities do.
Remember, there is a way to avoid this issue entirely. Did you guess? A prenup!!! A prenup can define marital property and set forth how assets and debts are going to be divided in the event of a divorce. So if you are still worried that gender may affect your divorce award, a prenup is your solution.
Divorce Myths #2: Children get to decide which parent they want to live with at a certain age
This is probably the #1 divorce myth that I get asked about. When clients come in for a consult on a custody issue, they almost always ask if there is some age at which their children get to decide where they want to live and have that choice control what the judge does. The answer to this is no.
Let me explain.
The basic question in every custody case is what is in the best interests of the child. While we can fight over days, times and holidays, that is the central focus for every judge when they decide where your children will live.
Kids don’t necessarily know what is in their best interest, because, you know, they are kids.
This really doesn’t change whether they are 14 or 16. Again, until they are 18 they are considered children. What if your child wants to live at dad’s house because he can stay up until 2:00 a.m. playing video games and never go to school?
Why would this decision not control when he is 13 but would when he is 14? Has he really matured that much? Would you want a court to automatically agree with your child without inquiry? And, more importantly, is that in your child’s best interest? I think we can all agree that it is not.
That is why the courts don’t have a cut off age where a child can automatically decide. Also, all kids are different. While one 14 year old may have a very thoughtful basis for wanting to live with mom full-time, another could simply decide based on who is going to buy her an Ipad. Also, how would this work if a child had special needs and was technically 14 but had the mental capacity of a 5 year old? Would the law still apply?
I think you can see how having such a hard and fast rule could get messy.
This is not to say that courts won’t listen to teenage children about where they want to live and why. Most judges will take their opinions into consideration. However, it is a divorce myth that such opinions are the deciding factor. And, I think your children are better for it.
Divorce Myths #3: Lawyers just want to take all your money and are the reason your case is difficult.
I blame Hollywood for this one. While I can’t speak for all lawyers, I would much rather have a case where the parties were respectful of one another than one that was a real-life War of the Roses.
And I can not tell you how much money and energy I see clients waste on making their case difficult. Notice I say clients, not lawyers. Although there are exceptions, for the most part any acrimony is driven by the clients and not their divorce lawyers.
Okay harsh talk time again about divorce myths.
You knew it was coming right? I care about my clients and want to fight for them, as I’m sure most lawyers do. However, I simply don’t care enough (or think it is appropriate) to manufacture conflict. I just don’t. And I bet most divorce lawyers feel the same.
While people think divorce conflict creates more money for the divorce lawyer, it really doesn’t. Generally it just creates a bill that my clients can’t afford. And what good does that do? A bill that can’t be paid is just a piece of paper. Almost worthless.
Also, one of my biggest sources of referrals is former clients. If I leave them penniless and exhausted, what is the chance they are going to want to send me their family member or friend? I think you can guess.
Now, this is not say that your legal bills will be low if you and your spouse play nice. There are a lot of reasons that your legal bills can be high that have nothing to do with the level of acrimony between you and your former spouse. But most of the time that is coming from the spouses, not the attorneys.
Related: Tips for keeping saving on divorce legal fees
Related: 7 hacks for choosing the right divorce lawyer
Divorce Myths #4: Your divorce has to be contentious
Do you think, if we aren’t fighting, I’m not doing this divorce thing right? Nope. You are probably doing it wrong.
Again, let me explain. The process of getting divorced and dividing up your assets and debts is similar to the dissolution of the business. The company was your marriage and now it needs to be closed down. Think of it as a going out of business sale. Cold, I know. But the sooner that you start thinking about the divorce process in those terms, the better off you will be financially . . . and emotionally.
Tying emotions to money is always dangerous. When you start to equate emotions to specific assets and debts and fight over them, you are going to lose. You will not only waste money on legal fees, you will stress yourself out and make it so that you are no able to move on to your best post-divorce life.
Fighting not only affects your finances, it also affects your ability to emotionally move past your divorce.
Do you know that fighting and anger is often a sign that you are not over your ex? Trust me, I wrote an article about it. Rather, taking a dispassionate approach to him/her and to your divorce is actually a sign that you are ready to move on. Continuing to engage your ex on issues regarding custody or property is unhealthy and affects your ability to transition to the next chapter of your life.
Who knows, that next chapter may be the best one yet! Don’t you want to find out? You won’t be able to if you are stuck in the cycle of fighting with your former spouse, likely the same cycle that landed you where you are today.
Need help overcoming this divorce myth?
If you think that you need help with changing your mindset, check out Gabrielle Hartley’s 6 week program, the Better Apart Masterclass that is specifically designed to help you change your thoughts about divorce so you can move on to a better relationship with your ex, yourself and your next partner. I know Gabrielle personally and have had a chance to walk through the program with her. It’s really great. Honestly, I wish I had thought of it. Interested? Subscribe to my newsletter and I’ll send you the promo code for $30 off. Who doesn’t love a deal right?
If you want to work with someone on a more individual basis, check out Jen Brick. She is a divorce coach who specializes in helping clients with changing the narrative surrounding their divorce and create a post-divorce life they love. I recently connected with Jen on Instagram and we got a chance to speak this week about what she does. I really love her philosophy and approach to helping clients after divorce and I think you may too.
Divorce Myths #5: Telling it to the judge is going to get you the vindication that you want or think that you deserve.
Spoiler alert: going to court you will never get the satisfaction that you think you want and should receive. In general, no matter how many times I can explain possible outcomes to a client, they are very married (no pun intended) to their version of the story. As such, they can not see how the judge would not see it their way and decide in their favor.
However, you need to remember that you are looking at your version of events with a filter. Your ex is looking at his or her position with a different filter. And, you guessed it, the court is looking at the case through even another filter.
Therefore it is likely that the court will make a decision that is not in 100% in favor of either side. The judge I clerked for at my first position after law school used to say, “if they both walk away unhappy then I’ve done my job.” This may seem mean but it’s true. She looked at the case through her third filter and made a decision.
So don’t go to court thinking you are going to find justice in the family court building. The courtroom is not going to erupt in cheers and you aren’t going to swing up the doors to the courthouse to swelling music. It just doesn’t happen in family court.
So what should you do to dispel this divorce myth?
- Get out of the mindset of looking to be right or for vindication of a past wrong through the judge’s decision;
- Listen (I mean really listen) to your lawyer’s advice about the possible outcomes;
- Really hear and process the lower court’s recommendations on how to resolve your case; and
- When you can, settle your matter to retain control over the final decision-making process.
Divorce Myths #6: Your life is over
This may be the saddest divorce myth. And the hardest to stop believing. For most, their marriage has been the narrative of their entire adult life. Their identity is wrapped up in being someone’s parent and someone’s spouse. As being part of a family, a unit.
All of a sudden, that story is over, perhaps before they were ready to close the book. The abruptness of having everything that you knew to be true ripped out from under you is very jarring and, for some, they can’t see a way past it. Add in concerns about finances and child custody and you can put yourself in a pretty dark place.
But I am hear to tell you that your life isn’t over.
I’m not going to give you any cliches. And I’m not going to lie and say this isn’t tough and it won’t take time. It is and it will. But you can get over it. You must. That’s the only way to get to your best post-divorce life! Don’t you want to get there?
Need help getting rid of your belief in this divorce myth?
This is where you may need to seek some professional help. Therapists, divorce coaches, and other professionals can help you deal with this loss and give you the tools to get rid of this divorce myth and move on to your best post-divorce life.
Also, if you are looking for something that you can do at your own pace, check out Gabrielle Hartley’s Better Apart Masterclass which is a six week self guided program which walks you through the 5 elements of the emotions of divorce with the goal of changing your mindset about the end of your marriage. At the end you’ll be ready, and hopefully excited to check out what is ready for you in your post-divorce life.
Looking for what to do next to dispel these divorce myths and help you on to your best post-divorce life?
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Did I miss any other divorce myths that you want me to dispel (or prove?) Leave a comment below or send me an email!
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