What Are Your Misconceptions About Divorce?

There are many common misconceptions about divorce.   Our attorneys are committed to educating our clients about the real issues so that they can make the best decisions possible.   What are some common misconceptions?   

Misconception 1: The party who files for divorce has an advantage.  Not true.   Legal rights in a divorce case do not depend on who files first.  The person who files first does chose the county where the case will be heard, but a party is limited to the county where one of the party’s lives, and as often both parties live in the same county, this is not an issue.  If a divorce ends up in litigation, the party who files first, the “Petitioner” presents his/her side of the case first. If this is an issue, your attorney will discuss it with you.

Misconception 2: Leaving the marital home means losing your interest in the property.  Not true.  You don’t lose your equity in the home by moving out.   Whether to move out or not does have consequences in custody and parenting time cases, so before moving out of your home, you should discuss this with your attorney.  If you do move out before the divorce is started, you might want to take items that are irreplaceable, family heirlooms and certain financial information. In most instances, if you move out, it is unlikely that you will be able to move back into the home during the divorce process.  However, this may not be true if you are vacating the home due to domestic abuse.

Misconception 3:   There isn’t much you can do if your ex-spouse doesn’t pay child support.   Not true.   In fact, courts have substantial enforcement tools, including wage withholding.  The non-payment of child support can also result in several significant consequences, including the suspension of the ex-spouse’s driver and professional licenses, the taking of tax refunds; and the imposition of property liens.  Contempt proceedings, which can result in the ex-spouse being incarcerated, can sometimes be an option. Additionally, child support, as well as spousal maintenance obligations, cannot be discharged in bankruptcy. On the other hand, non-payment of support is not grounds for taking away parenting time. 

Misconception 4:  Marital property is split 50/50.  Not true.   In Minnesota the court applies a concept known as “equitable distribution”  which allows the court to consider several factors, including the length of the marriage, and the contribution of each spouse in the acquisition, preservation, depreciation or appreciation in the amount or value of the marital property, as well as the contribution of a spouse as a homemaker.  However, absent unusual circumstances, equitable distribution often results in an equal division of the marital estate. However, fault such as an extramarital affair, is not a factor in asset distribution.

Sources:

Minnesota Statute 518A.65
Minnesota Statute 518A.66
Minnesota Statute 518.58, subdivision 1.