Tuesday, October 2, 2012
When people come to see me, I often hear the same concerns over and over again, which is not surprising given that the divorce process is like a train ride and all of the issues come directly to the depot – my office. I hope to debunk three of the most common divorce myths in this article.
The first myth is the belief that when a couple is awarded joint physical custody of their kiddos, no one will pay child support. People often think that an equal parenting time schedule automatically relieves them of the financial obligation to the other parent, but this is simply untrue. Child support is partially based on the number of parenting time overnights one has, but income is an enormous factor in calculating child support (among other factors). Even if you have exactly 182.5 overnights per year with Tommy, but you earn twice as much as his mom, you’re going to wind up paying child support. The income differential between the parents will affect whether or not someone will pay support regardless of custody. Of course, some parents will agree to reserve child support when they share custody, but if the Mrs.’ attorney runs the child support program and tells her even with joint physical custody she’s entitled to $200 or $500 per month, don’t bet that this will be the case (Tommy needs as many fabulous shoes as she has).
The second biggest myth revolves around the abandonment of your home. People often separate during divorce and vacate the marital home, leaving the other party to turn it into a bachelor (or bachelorette) pad. Many people worry that this means they have permanently abandoned the home, can’t ever come back, and that they’ve forfeited their claim to any equity in the property. This is also false. Remember that the deed to the home determines legal ownership, and in most cases, married couples hold the deed jointly. Even if you’re not on the deed, it’s likely the address on your driver’s license, which shows that you certainly have a right to come and go to get your belongings, pick up the kids, etc. Sure, when you move out, your husband may not expect you to come back every day, but it’s not unusual for the parties to still use the marital home as an exchange point for parenting time or get together to split up the household belongings. Equity in the marital home is also not exclusive to the party that lives there either.
Courts can order “exclusive use” of the marital home which is an order that provides for only one party to reside at the marital home and prohibits the other from coming to the home or property (some exceptions exist depending on what’s written in the order). If this happens, the party remaining in the home often changes the locks, garage door opener and pass code to prevent the other from disobeying the order. Most often these orders are granted when there is an issue with domestic violence, substance abuse, or the parties simply cannot get along while living together. If one party has vacated the home already and has a new place to live, and the party remaining is afraid that he will come back and clean out all the sweet Budweiser collectables, she may ask the court for exclusive use to prevent that (assuming he doesn’t break in and steal the stuff anyways – just because something’s in writing doesn’t mean people abide by it).
The last myth examined in this article goes along with the second – when one person leaves the marital home, are his financial obligations to the marital expenses for that home done and over with? Nope. Just because you move out does not mean you are exempt from contributing to things like the mortgage, utilities, taxes and insurance, especially if your paycheck was the one primarily used to pay these expenses in the past. If you voluntarily fail to pay these expenses upon your move (and you know your spouse doesn’t have the means to do so on his or her own), the court can order you to continue your regular financial contribution to these expenses, or least a partial contribution with your spouse kicking in for the rest of the cost. Yep, it’s expensive to get divorced.
I hear plenty of complaints from divorcing clients, which as you’d imagine, can be very taxing at times. However, the worst part of my job is not being able to tell people what they want to hear, but instead having to tell them what they need to hear.