By: Larry Sarezky
If you’re divorcing or even considering it, you’re likely to become a magnet for advice from friends, family, your mail carrier, and a host of others. Though well-meaning, much of that advice may be inapplicable to your case, inconsistent with your state’s laws, or just flat-out wrong. Failure to fact-check divorce “alternate facts” can lead to harmful parenting strategies and disastrous financial decisions.
Below are six of the most popular—and potentially dangerous—divorce myths. While each is widely considered to be completely true, not one of them actually is.
“I don’t need a lawyer to figure out my child support because
any dope can look it up in my state’s Child Support Guidelines.”
FALSE. It helps if that dope is a lawyer (or other divorce financial professional) because calculating child support involves more than plucking numbers off child guidelines charts.
Each state has its own set of Child Support Guidelines and related rules regarding what income, employment perks, health insurance, childcare, and other items must be cranked into the calculation of child support. Take a peek at the lengthy instructions to your state’s Guidelines on your court system’s website, and you’ll understand why you might need help figuring out child support.
For example, each state has exceptions or “deviation criteria” that allow judges to disregard the Guidelines in order to avoid an unjust result. Familiarity with those often-complicated criteria is critical, especially in situations that call for outside-the-box solutions.
In addition, determining a supporting spouse’s actual income (vs. what appears on tax returns) is essential in calculating support. Help from a lawyer or divorce financial analyst can be invaluable here as well, particularly if your spouse is self-employed.
“My spouse and I can save on legal fees
by having one lawyer represent both of us.”
FALSE. Lawyers can only represent one spouse in a divorce. The other spouse is self-represented. If a lawyer tells you she’ll represent both you and your spouse, find another lawyer.
“‘No-fault divorce’ means that a judge cannot
consider a spouse’s misconduct in deciding financial issues.”
PARTLY FALSE. Every state has a no-fault divorce law. These laws permit divorce even if neither spouse has engaged in misconduct.
However, that does not mean that evidence of marital misconduct cannot be introduced in court. In a number of states, the reason for the breakdown of the marriage remains one of the factors a judge can consider when making spousal support orders. Judges are most likely to factor in misconduct they believe is “egregious,” such as an extramarital affair where money has been diverted from the family to a significant other, or marital assets have been concealed, transferred or wasted.
“If I give up my ownership interest in my home
in my settlement, I’ll no longer be responsible for the mortgage.”
FALSE. Transferring your ownership interest in your home does not affect your liability to your lender. The same applies to car loans and other “secured debts.” If you transfer such interests, protect yourself by including in your settlement agreement:
Ø A clear statement that your spouse is solely responsible for the related debt
Ø An “indemnification” or “hold harmless” clause requiring your Ex to reimburse you for any payments you make because he/she hasn’t, plus reasonable legal fees and expenses you incur as a result
“My pension is protected from claims by my spouse.”
FALSE. The federal law known as “ERISA” contains exceptions to the rule protecting pensions from claims by “third parties.” One of those exceptions permits distribution of pension benefits in a divorce settlement. This is accomplished by way of a qualified domestic relations order or “QDRO” (pronounced “Kwah-dro”).
“Children benefit when their parents insulate them from the divorce.”
FALSE. There’s a difference between shielding and insulating children from divorce.
Shielding children from the antagonisms of divorce is desirable and doable. Insulating all but the very youngest children is nearly impossible. And even if it were possible, children shouldn’t be totally shut off from the event that has turned their world upside down. Parents trying to protect their children by refusing to discuss the divorce usually wind up raising the children’s anxiety levels by depriving them of necessary information.
You owe it to yourself and your kids to make educated divorce decisions. Consulting a local divorce lawyer or financial analyst, and reading material available on your state’s court system and bar association websites are excellent ways to begin. It will be well worth your investment of time and money.
The above is excerpted in part from Larry Sarezky’s amazon #1 best selling DIVORCE, SIMPLY STATED, a veteran divorce lawyer’s guide to achieving more and spending less in divorce.