Common Divorce Misconceptions & Equitable Distribution

"Popular Myths and “Old Wife’s (and old Husband’s) Tales.” It’s amazing how many people (and even some inexperienced lawyers) still believe and perpetuate some of the fantastic lore that surrounds divorce. Perhaps certain stories that pop up in the Rag Mags about divorce help fuel these myths.

1. For instance, oftentimes clients think that living pursuant to a separation agreement for a year constitutes a divorce. False.

2. People think that if you leave your home, this constitutes abandonment and will adversely affect all of your rights in a divorce action. False.

3. That abandonment affects your right to equitable distribution property. False.

4. That Abandonment, even under circumstances that require your safety or the safety of a loved one, affects your right to move for spousal support. False.

5. That spousal support is the same as alimony. False.

6. That child support need not be paid if the custodial spouse refuses to allow you to visit with the subject children. False.

7. That in all circumstances an ante nuptial agreement or prenuptial agreement is never subject to attack. False.

8. That all parties can always buy a “divorce kit” and get a divorce cheaply, without first consulting with an attorney. False.

Rarely is the judge concerned about the reasons behind the demise of your marriage. Mainly, the judge presiding over your matrimonial case is charged with deciding three main issues. These issues center on Support, Property and Custody.

During the Pendency of the action, the Judge will be asked to decide these main issues, custody, support and property distribution, with some consideration given to the peripheral temporary issues of who is to remain in the marital residence, who will pay the carrying costs on the marital residence until ultimate disposition, who will be the temporary custodian of the children, and what kind of visitation will there be.

Many people think that if you file for divorce, your spouse must leave the marital residence. This is not true in New York. To have your spouse ordered out of the house you need to show the court you are a victim of domestic violence or that there is a threat of physical harm. You may also request that the spouse leave the marital residence if the spouse has established an alternative residence elsewhere.

Read Next Section >

Warning: The information contained herein is not intended to substitute for legal advice from your own retained lawyer in new york state. This article is merely informational in nature, and is based upon one attorney’s knowledge of the practice of family law, matrimonial law, domestic violence, custody, child support and orders of protection.

Retain counsel before you do anything to affect your marital status and follow the advice of the lawyer you retain, not what is written herein.