Instead of tackling my holiday shopping list, I came up with a list of the top 5 myths about divorce and family law. I am taking a stand against misinformation AND rampant consumerism — now that’s a good day. . .
So, here they are in no particular order.
Do my spouse and I have to legally separate before we can get divorced? No. A “legal separation” is an entirely different legal proceeding governed by a separate set of laws. A so-called “legal separation” is not a part of, or a prerequisite to, a divorce. Click here for more information about the steps involved in the divorce process.
Will I (or my spouse) be forced to move out of our house when the divorce is filed? Not necessarily. In fact, some spouses continue to reside together while a divorce is pending (and even shortly after a Judgment of Divorce Nisi has entered.) The Court will not — and cannot — order a spouse to leave the house UNLESS the Court is convinced that the other spouse is entitled to an Abuse Prevention Order (often referred to as a Restraining Order) or the Court determines, “after a hearing, that the health, safety or welfare of the moving party or any minor children residing with the parties would be endangered or substantially impaired by a failure to enter such an order.”
If I DO move out of my house, will the Court consider that “abandonment?” No, the concept of so-called “abandonment” is relevant only when a party is seeking a divorce on fault grounds (very rare.) You have not committed “abandonment” simply by moving out of your house. Whether or not it is wise for you to make a permanent move, however, is an issue that you should get legal advice on BEFORE you move.
Does child support automatically stop when my child turns 18? Not necessarily. The Court can order parents to continue paying support and/or contribute to a child’s college expenses — up to a maximum age of 23 — IF the child remains “unemancipated.” As a practical matter, if your child attends college, then s/he will remain “unemancipated” for so long as s/he remains in school. The trickier cases are those where a younger child — between the ages of 18 and 21 — does not attend college (or does not attend college full-time) but still lives with one parent and is not financially self-supporting. Whether or not that child is “emancipated” — and whether or not the Court will modify or eliminate an existing support order — will depend on the circumstances. Click here for more information about child support.
At a certain age, does a child get to choose which parent s/he lives with? Not entirely. If your child is under the age of 18, the parents — or, if the parents cannot agree, then the Court — decides custody and a parenting plan based on what the Court determines is in the child’s best interest under the circumstances. Keep in mind, however, that the Court can consider the child’s expressed wishes and desires, and will do so especially if the child is older, demonstrates a level of maturity and articulates well his or her legitimate reasons for wanting to have a certain parenting schedule. If your child is over 18, then the Court no longer has the jurisdiction to determine that child’s custody (although, as noted above, the Court can still order support for that child up to age 23 in certain circumstances.)
Here is the bottom line — the information that you think you heard about another person’s divorce, custody or support case was probably misinterpreted or relayed incorrectly many times before that information reached you. And, that person’s life is not your life, so their case is not your case. You don’t have to guess about these things, feel free to email me directly with your specific question.
Thanks for reading.