Divorce is never easy. Unfortunately, there are a lot of myths and misconceptions about the process that make it all the more daunting for those considering divorce or who have been served divorce papers.
At Arnel Law Firm, we believe that knowledge is one of the most powerful tools you can have on your side when navigating any type of family law conflict. To that end, we’ve put together a list of 7 of the biggest misconceptions about divorce in the state of New York, as well as the realities behind them.
Continue reading to learn more or contact us directly for a private consultation with one of our Brooklyn divorce attorneys.
I Can’t Get Divorced If My Spouse Won’t Sign the Papers
It’s one of the most common myths about divorce we see—you can refuse to grant your spouse a divorce. But this is not true. Divorces in New York are granted by Supreme Court judges, not the other spouse.
If you wish to file for divorce in New York, you may do so without your spouse’s consent. Similarly, your spouse can file an action for divorce with the New York Supreme Court without your permission.
I Get to Keep My Retirement Funds/Pension Because They Are in My Name
This is another common misconception, but the reality is that retirement accounts, 401k contributions, pensions, and similar assets are all considered “marital property” by the state of New York. This means that they are subject to equitable distribution in the event of divorce, regardless of who made the contributions or whose name is on the accounts.
An experienced attorney can help protect your assets during a divorce. While your retirement account(s)/pension are not automatically safeguarded, they are also not guaranteed to your soon-to-be ex-spouse. Your attorney will be able to advocate for you and your best interests.
I’m Going to Lose Half My Property If I Get Divorced
New York is an equitable distribution state. This means that the court does not divide property 50/50 between divorcing spouses but, rather, decides on a division of property that it deems “fair.” All marital property (any properties, assets, and/or debts acquired during the marriage, with few exceptions) is subject to equitable division, but that does not mean it will be split evenly between you and your spouse.
The court evaluates numerous factors when determining an equitable distribution of property during a divorce in New York. These include the overall earning ability of each spouse, the age and health of each spouse, which spouse has primary custody of the child/children (if relevant), and more.
Mothers Always Get Custody of the Children
Many people mistakenly believe that the court automatically grants primary custody to mothers. However, this is simply not true. In fact, the court makes all custody and visitation decisions based on the “best interests of the child.”
When determining who will have physical and/or legal custody of a child, the court will weigh a variety of factors, from the child’s current relationship with both parents to each parent’s ability to care for the child. The court can grant joint custody or sole custody; most often, the court will award some form of joint custody to preserve the child’s relationship with both parents.
Whoever Is at Fault for the Divorce Will Get Nothing
Many people believe that the person who is “at fault” for the divorce will lose everything, from the family home to their personal belongings to custody of their children. But in New York, it does not matter who is to blame for the divorce. In nearly all cases, fault is not a factor in determining equitable distribution of property, alimony (spousal support), child custody, or any other factors involved in the divorce.
In the state of New York, divorces can be filed on the grounds of fault and no-fault, meaning you do not even need to prove that one spouse was primarily to blame for the dissolution of the relationship. However, even when divorce is filed on grounds of fault, fault does not typically play a significant role in how the divorce is settled.
We Can’t Get Divorced Until We Have Been Separated for a Year
This is another common misconception about divorce. In New York, not everyone must be legally separated prior to filing for divorce. In fact, the specific factors involved in your situation—including the grounds for divorce, how you file, and your unique circumstances—all play a role in what requirements you must meet prior to filing.
That being said, some cases do require spouses to be legally separated for a specific time period before filing for divorce. We encourage you to contact our Brooklyn divorce lawyers to discuss your case during a private consultation.
I Don’t Have to Let My Ex-Spouse See the Kids If They Fail to Pay Child Support
A lot of people believe that if their ex-spouse fails to make court-ordered child support payments, they can refuse to let them see their children. This is not the case. You should never violate a custody or visitation order, as this could ultimately come back to haunt you.
If your ex-spouse (or the other parent of your child) fails to pay child support, you may seek an enforcement order through the court. The non-custodial parent is still entitled to court-ordered visitation rights, which will only be changed if the court decides that visitation with the parent is no longer in the child’s best interests.