Newly separated and divorcing clients almost always come to us with preconceived ideas of what they hope/expect might happen in their cases. All too often, these preconceived ideas are based on a client’s own sense of equity and justice, but are incorrect as a matter of law. Here are five of the most common misconceptions, and reality checks for each.
1. My spouse almost never spent time with the kids while we were together, so he/she should not have significant parenting time with them now that we are separated.
Reality: Everything is subject to change post-divorce, including a parent’s active involvement in the day-to-day caretaking of the children. Gone are the days when it was presumed that the children would remain primarily with one parent after a divorce, spending every other weekend and perhaps a weekday dinner visit with the other parent. Courts are increasingly defaulting to shared-custody arrangements, even in situations where one parent’s involvement pre-divorce was fairly minimal. Every parent will be given the opportunity to be significantly involved in their children’s lives.
2. My spouse cheated on me, so I’m going to take him/her to the cleaners in this divorce.
Reality: As our fearless leader Nancy Van Tine has often said, “The judges won’t care if your spouse slept with the entire offensive line of the New England Patriots, as long as he or she didn’t waste marital assets doing so.” While the courts can take conduct into effect in dividing marital property in a divorce, they generally will do this only if, for example, significant funds were spent on gifts, hotel rooms, and the like. Illicit sexual activity, in and of itself, will have no impact on the court, despite the emotional toll it renders on those involved.
3. I did all the work, I earned all the money, and these assets are all mine.
Reality: Massachusetts takes an extraordinarily liberal view of “marital property.” The Court may award to either spouse any part or all of any asset, regardless of how it is titled, when it was derived (including assets that either spouse held prior to the marriage), or from where it was derived (including gifts and inheritances).
4. No matter what, all of our assets will be divided 50/50.
Reality: While it is common, in many divorces, for assets ultimately to be divided equally between the spouses, particularly after longer-term marriages, this is not the rule. Judges are required to take into consideration numerous factors, including each party’s age, health, employment, employability, and opportunity to acquire additional assets in the future, as well as their financial and non-financial contributions to the marriage.
5. There’s nothing complicated here, I can handle this divorce on my own.
Reality: Even in short-term marriages, even in childless marriages, even in situations where the separated spouses are cordial and think they have it all worked out, it is beneficial to nearly everyone to consult with an attorney. We know the ins and outs, we know the misconceptions and the realities, and we can help ensure that the process and the outcome are as equitable as possible.
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