When it comes to divorce and family law, there are a lot of assumptions and stereotypes about how the courts work, particularly regarding gender and parental roles. What many people do not realize is how much the courts have changed and evolved, especially over the last twenty years, making family law a more equitable and open-minded division of the court system. As Chicago divorce attorneys, that means devoting time to dispelling assumptions and myths about divorce and what our clients can expect in their divorce and custody cases.
Below explore the five common myths about divorce and the facts you need to move forward.
Divorce Myth #1: You Can’t Get Divorced If Your Spouse Wants to Stay Married
One of the most important things to know when contemplating divorce is that your spouse cannot stop you if they don’t agree with your desire to get divorced. While in the past, judges often made people “prove” why they wanted a divorce, or that they had exhausted their efforts to reconcile their marriage before filing to dissolve it, judges now know that parties should be free to divorce without having to “deserve” it. While having a spouse who wants to remain married can make the process more emotional and sometimes more painful, their resistance is not a reason not to finalize your divorce. Simply put, it doesn’t matter to the courts if your client agrees with your request to get a divorce—no judge will make you stay married if you go through the proper procedure to dissolve your marriage.
Divorce Myth #2: Equal Parenting Time Does NOT Equal No Child Support
In family law, there is an enormous amount of grumbling that goes on about child support. Many parents saddled with a child support obligation feel upset that they have to send money to their ex to care for the children, especially when they are also having to deal with paying for a new household on their own. A common misperception about child support is that if the parents have equal time, then no one has to pay child support. While it is true that having equal time, or close to it, will greatly reduce a child support obligation, it won’t necessarily get rid of it. In addition to parenting time, the court will look at the respective incomes of the parties to calculate child support pursuant to the state guidelines. The parent earning more money is more than likely going to have some kind of child support obligation, even if the parties have equal parenting time or close to it. So while having more time with your kids will help you to keep that cost lower, be prepared to still have some sort of support obligation if you are the higher earner.
Divorce Myth #3: Equitable Means Equal
Illinois is an equitable division state. That means that all marital assets, and debts, should be divided equitably, i.e. fairly, between the parties. The mistake that many people make is the assumption that equitable means equal, or a 50/50 split. For many families, however, an equal split of assets and debts would not be fair or equitable. When deciding what is equitable, we have to look at how much each spouse is earning and is predicted to earn in the future. A wife who is a neurosurgeon earning $400,000.00 a year has, and will always have, greater earning potential than her husband, the middle school teacher earning $50,000.00 a year. In a situation like that, giving the husband a larger share of the marital assets and a smaller share of the debts, is what is equitable given the enormous discrepancy in their earning potentials, both now and in the future.
Divorce Myth #4: Moms Always Get the Majority of Parenting Time with the Kids
A common refrain in family law courts is that fathers don’t really have a shot at equal parenting time and are most often relegated to alternating weekends and a weeknight dinner. While there are many families for whom this is the parenting time schedule, the courts have adopted a drastically more open-minded and forward-thinking approach to fathers and parenting. In the past, most judges assumed that it was in a child’s best interest to spend more time with the mother. Now, courts recognize that it is in a child’s best interest to spend ample time with both parents and favor an equal division of time between the parents. We also now understand that having two active, involved, and healthy parents is important to raising happy and well-adjusted children. Parents proceeding with a divorce should be prepared to craft a schedule that will allow both parents ample time and access to their children. And for any father wishing to have more time with their child(ren), it’s important to know that parenting time can always be modified at any time and that judges are increasingly respectful and cognizant of the role fathers play in their children’s lives.
Divorce Myth #5: If I Bought It, It Belongs to Me
When couples separate, money is almost always the first thing to become an issue. People start moving money around or claiming that certain bank accounts, property, or possessions belong only to them, not their spouse. People rarely realize that all money earned during the marriage is marital, no matter whose name is on the bank account, car title, or mortgage. They also often don’t realize that “property” doesn’t just mean a house or other building;
it means anything bought or acquired during the marriage, including money, bank accounts, stocks, cars, jewelry, art, etc. In a marriage, there really is not “I paid for it” unless you are making payments from a nonmarital account or fund, like an inheritance fund. If you bought it with your earnings from work, the item is a joint asset purchased with marital funds. Likewise, if you are paying the mortgage with your work earnings, even if it’s from an account only in your name, that is marital spending on a marital asset. So don’t make the mistake of thinking that you get to keep the house and all of the equity just because you paid the mortgage. It just doesn’t work that way. But remember, the same goes for your spouse and their spending. You have a valid claim to all their stuff, too – that’s the nature of marital property.
Get Answers from an Experienced Divorce Attorney
If you are contemplating a divorce and have a question about what’s true and what’s fiction, contact Anderson Boback & Marshall to speak with a divorce attorney in Chicago. We can apprise you of your rights and help you sort through the misinformation and myths about divorce and help you move forward with your future.
