Common Family Law Myths… Debunked – Part 1 – Divorce

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When you go through a divorce, it is inevitable that someone you know will offer their unsolicited (or totally solicited) legal advice.  A lot of what I hear from clients is some mixture of fact and fiction, with much of the “fiction” being based on stereotypes, what people see on TV shows, or Google searches.  So, I’ve compiled a quick breakdown of some of the most common myths I’ve come across in the Family Law world… and I debunked them.  Part 1 focuses on common myths in divorce cases, and Part 2 will focus on child custody and support.

  1. If I move out of the house, I abandon my rights to it.

This is a popular one, and it usually comes up in situations where my client wants to move out, but his or her spouse has said if they do, they forfeit their share of the house equity.

If the house was purchased during the marriage, it is a marital asset, absent special circumstances.  Just because you move out of the marital household, this does not then give your spouse the right to keep all the equity in the home.  In fact, more often than not, spouses will physically separate once the decision is made to divorce.  Additionally, the Court could order one spouse to move out during the pendency of the case, especially if living together is not practical or there is too much hostility between the two.  So, the sheer fact that one spouse leaves the home does not affect that spouse’s marital interest in any equity that exists at the time of separation.

  1. My name is not on an asset, so that means it is not “marital” property.

Part of the divorce process is the Court assessing what property a couple has and then deciding how to divide that property.  Under Illinois law, marital property is defined as “allproperty…acquired by either spouse subsequent to the marriage.”  However, there are exceptions to what is considered “marital property” by the Court, such as property received by inheritance.

Because of this, it often does not matter that only one spouse’s name may be on an asset, as the Court is more concerned with when the asset was purchased and/or whether it qualifies as marital property under the statute.

  1. We can’t sell our house until divorce is final.

There is a misconception that when a divorce is pending, the parties cannot touch their assets, sell them, or otherwise divide them before the marriage is dissolved.  While it is true that a spouse cannot dispose of an asset without the consent of the other spouse once a divorce is on the horizon, the parties can agree to dispose of their assets at any time.

The Court only gets involved when the parties cannot agree on the division of their assets.  In fact, many Judges prefer situations where parties have already divided bank accounts, credit cards, assets, and personal possessions before the Court is ready to enter a Judgment, as then there is less to do after the Judgment is entered if the parties no longer hold anything in joint names.

  1. If I am paying alimony to my ex, and my ex moves in with someone, alimony stops.

Cohabitation is the term used for when the spouse receiving maintenance begins residing with another individual on a continuing and conjugal basis.  This is a controversial issue, and one that often results in a lot of litigation in the Courts, as there is no “standard” for how cohabitation is proved decided.  Each case is incredibly fact-specific.

But, one thing that has been fairly consistent is that just because a spouse has a new significant other who may be staying or living with them several days per week, this doesn’t automatically mean maintenance stops.  The Courts often require a showing that the couple is actually living as though they are a “de facto” married couple, meaning they do some combination of the following: share bank accounts, jointly hold some assets, share the monthly housing expenses, take vacations together, share holidays together, and more.

  1. All divorces are ugly

I can’t tell you how many times I’ve had a client in my office saying, “I’m not sure what to do, because I don’t want things to get ugly.”  Some even hate saying the word “divorce” because of the negative connotation that follows that word.

My job in this process, as I’ve always seen it, is to show clients an alterative way to get through the divorce process – one that doesn’t involve “ugly battles” or perpetuate the idea that all divorces end in costly trials where my client has to sit on the stand and sling mud at their spouse.  My approach focuses on efficiently assessing the parties’ marital estate, their financial needs, and their options for how to resolve the division of their assets and debts.  Additionally, my experience allows me to offer creative options for parenting schedules and the sharing of decision-making responsibilities, as no two families have the same needs in this department.

A client’s options for avoiding costly, prolonged, and contentious litigation are endless.  Whether it’s an uncontested litigation, mediation, settlement conferences, or written settlement negotiations, many litigants can go through all the steps of divorce without ever stepping foot in a courtroom.  These methods are less costly and often less emotional than those where the couples are filing emergency motions against one another from Day 1.  But, it’s worth noting that even cases that may start as hotly contested can still end in an amicable settlement.

Contact Kristen C. Strieker at Strieker Law Firm to get more information about your case, or to discuss any of these issues in more detail as they relate to your situation.