Common Divorce Myths Debunked

Common Divorce Myths Debunked

Many people have heard a number of myths concerning divorce. This can lead to misaligned expectations to the reality of divorce proceedings. The following are five common myths debunked with an explanation to the reality of the situation.

  1. Divorces are always messy.

While divorce is one of the most difficult and stressful periods during an individual’s life, it does not have to be fraught with accusation and conflict.  In fact, the majority of divorce cases end in a settlement; meaning that both parties came to an agreement on all issues.  Most divorcing couples prefer to reach a resolution as quickly and efficiently as possible.  A related myth is that attorneys increase the level of conflict in any given divorce.  In reality, most attorneys set reasonable expectations for their clients and discourage clients from engaging in acrimonious behavior.

  1. Children decide who they live with.

If the divorcing parents are in agreement, arrangements for the custody and placement of the minor children is completely up to their discretion.  When parents do not agree on custody and placement issues, the Court will appoint another attorney as a Guardian ad Litem to represent the children’s best interests.  After investigating the case, the Guardian ad Litem will make a recommendation to the parties and the Court.  While the Court is not obligated to adopt the recommendation, the Guardian ad Litem’s position is often given significant weight by the Court.

Although the Guardian ad Litem is required to inform the Court of the children’s wishes, when the children want their wishes to be communicated to the Court, the Guardian ad Litem’s recommendation does not have to align with the children’s wishes.  It is commonly expressed that “children have a voice; not a choice.”  This is a consequence of the fact that the Guardian ad Litem represents the children’s best interest, not the children themselves.

  1. Visitation can be denied to a parent who fails to pay child support.

The failure of one parent to pay child support is never a reason for the other parent to withhold the child from the nonpaying parent.  Withholding a child is only appropriate in the most extreme circumstances when the child’s safety is legitimately at risk.  In fact, it can be a felony for a parent to withhold a child from the other parent.  However, when one parent fails to pay child support when so ordered, the other parent is not without recourse.  He or she can file a motion with the Court, asking it to enforce the child support order.  At this point, the Court can award fees and costs to the parent bringing the motion and may find the nonpaying parent in contempt of Court if he or she still fails to make payments.

  1. The Court can consider infidelity when deciding a case.

Wisconsin is a no-fault divorce state.  This means that Wisconsin courts will not hear evidence relating to the cause or causes of a divorce.  Accordingly, accusations of infidelity, no matter how well-founded, are usually irrelevant to a divorce proceeding.  With that said, evidence related to an affair may be relevant when a spouse makes a claim of marital waste.  A claim for marital waste can be made when one spouse “wasted” marital funds or assets during the marriage on things like gambling, illicit drugs or funding an affair.  A successful marital waste claim will result in the Court crediting a spouse with the value of the “wasted” marital funds or assets during the Court’s property division determination.  Accordingly, if a spouse uses marital funds to finance an affair, such evidence may be relevant to a marital waste claim.

  1. Divorces are either “won” or “lost.”

Family courts are courts of equity, meaning that they endeavor to resolve divorces as fair and just as possible.  A divorce is simply the process of separating spouses’ financial and parenting lives.  While spouses may win or lose on certain contested issues in a divorce proceeding, the overall outcome is usually fair to everyone involved.  Looking at a divorce in terms of winning and losing can have negative consequences.  Taking such an approach will almost always result in a longer more expensive divorce.  In addition, if the spouses have minor children together, it can make post-divorce co-parenting more difficult than it would be otherwise.

 

Yours, Mine and Ours – How Property is Divided at Divorce

Yours, Mine and Ours – How Property is Divided at Divorce

In Wisconsin, property is presumed to be equally divided between the parties in a divorce action. Almost all property owned by the parties is subject to equal division. This includes property that is titled solely in one spouse’s name and property acquired by a spouse prior to the marriage. Only property acquired by way of gift or inheritance made to an individual is excluded from the division of marital property.

While it is presumed that all property not acquired by gift or inheritance is to be divided equally, the courts can consider a litany of factors when a party requests an unequal property distribution. It is not uncommon for parties in a divorce action to ask the court to credit them for premarital assets. Similarly, courts are also allowed to consider the contribution of each party to the marriage, giving appropriate economic value to each party’s contribution in homemaking and child care services. Courts may be more likely to entertain such requests in cases of shorter-term marriages. However, the chances of success of arguments to alter the presumed equal division of property decrease when parties were married for a longer period of time. Ultimately, whether a court will deviate from the presumption of equal division is dependent on the unique facts of any given case.

Clients often ask how property is “equally” divided. It does not mean that both parties get a one-half ownership interest in each marital asset. Rather, each asset is given a value and entered into a spreadsheet under one of the parties’ columns. After all of the marital assets and debts are entered into the spreadsheet, each party is left with a net value of assets in their column. If a party’s net assets have a higher value than the other party’s net assets, it is common for the party with a higher value of net assets to pay an equalization payment to the other party to ensure an equal division of property.

Determination of who gets what asset and what value should be assigned to each asset may be mutually agreed to by the parties but is often litigated in contested divorces. If you have questions about property division in your divorce, contact our office to consult with one of our family law attorneys.

 

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