Many clients tell us that they have heard various facts about divorce that turn out to be untrue. Here are some myths clients have believed about divorce. Relying on incorrect information can adversely affect the outcome of your case. Be sure to get legal information from a competent attorney rather than with your friend.
1. I am separated if my spouse and I live in separate bedrooms for a year.
This is false. Except in limited circumstances, you must be actually separated and not live under the same roof to be considered separated. An attorney will assist you in determining whether you may fall within these limited circumstances.
2. In a divorce, my spouse will not get any money if assets are in my name.
This is false. In Maryland, it does not matter whose name is on the asset; if the asset was acquired with marital funds, it will be considered by the court in making a marital property award.
3. The court won’t touch my 401(k)/pension in a divorce.
This is false. A 401(k)/pension that was acquired or earned during the marriage is marital property and the court will divide the marital portion of the pension or 401(k) Plan.
4. I need to be legally separated before I can file for divorce.
In Maryland, there is no “legal separation.” If you are no longer living with your spouse, the court will consider you to be separated even if there is no formal agreement that documents your separation. People do sign separation and property settlement agreements, which are contracts that resolve issues pending in the divorce, but if no agreement is reached, the court will decide these issues.
5. There is a formula that shows how much alimony I will receive.
In Maryland, there are no alimony guidelines and no set formula for determining the amount of alimony a person will receive. However, the court does consider a number of factors in deciding how much alimony to award.
6. Men never get awarded alimony.
This is false. Men can be awarded alimony. In deciding whether to award alimony to either spouse, the court must apply the same gender-neutral factors.
7. The mother always gets custody of the children.
This is false. Fathers are awarded custody of the children when it is determined that it is in the best interests of the children to live with him. The law regarding custody is supposed to be gender neutral. In reality, however, while some judges still favor the mother, there are many instances where a father will be awarded custody of the children. Additionally, most judges believe a child needs both parents involved in their lives and often parents will be awarded joint legal and shared physical custody.
8. Women never commit domestic violence.
This is false. Both men and women are capable of violence.
9. If my spouse committed adultery, I won’t have to pay alimony.
Since marital fault is only one of the factors considered by the court when making an alimony award, a spouse who committed adultery may still be awarded alimony.
10. If I go to mediation, I don’t need a lawyer.
Mediation is a good way to settle your case and you may be able to go to mediation sessions without your attorney, but it is not a good idea to do so. NEVER go to mediation without first getting good legal advice. The mediator’s job is to get you and your spouse to reach an agreement; however, the mediator does not represent either party and cannot give legal advice.
11. The court can give lifetime alimony.
There is no such thing as lifetime alimony. The court may award rehabilitative alimony or indefinite alimony. Rehabilitative alimony is usually awarded for a number of years and will terminate if it is not extended by the court. Rehabilitative alimony is usually awarded to allow a spouse to get retrained or to get back into the work force and become self-supporting. Indefinite alimony will be awarded in long-term marriages where there is a disparity in the incomes of the spouses. It will usually terminate upon the death of either party or the remarriage of the spouse who is receiving alimony. Indefinite alimony can be modified or terminated by the court.
12. The court can make my spouse provide for life insurance naming me and/or our children as beneficiaries.
The court has no authority to order a party to maintain life insurance, although the parties can agree to this in a settlement agreement.
13. The court can make my spouse pay for our children’s college education.
The court cannot order either parent to pay for college, although the parties can agree to this in a settlement agreement.
14. I can quit my job and I won’t have to pay support.
If the court determines that a party has quit a job to avoid paying support, the court may assume a person is capable of earning at least what he or she earned in the past for the purpose of calculating their support; this is known as imputing income.