Myriad sources inspire and fuel pervasive myths about the divorce
process. Whether the origin is a cousin of one's best friend's
brother-in-law, a co-worker, or one of many advocacy groups, false
beliefs abound. All lawyers cannot be expert in the area of family
law, but it is helpful to be familiar with common false notions
expressed by those facing the legal system. Dispelling these
misconceptions can help educate those involved in this often
frightening and unknown process. Some of the predominant myths, which
can incorrectly influence potential litigants' decisions, are as
follows.

Myth #1: "It is legally advantageous to be the party initiating the
divorce process."

Individuals are frequently concerned that the court will favor the
party petitioning for divorce (the petitioner), as if that party will
achieve special relief for starting the process. In fact, the party
initiating the divorce has no special rights over and above the
responding party (the respondent) (except to initially determine
venue, as described below). Even if one assumed that the respondent
answers solely to the petitioner's allegations, ours is a "no-fault"
state. Therefore, the court is generally required to disregard
alleged wrongdoing, unless it affects the best interests of the
children. The burden of proof required in the proceeding is
unaffected by the assignment of the labels of petitioner and
respondent.

Individuals are frequently concerned with the "petitioner"
and "respondent" labels, which merely determine placement of the
parties' names on the caption of the pleadings. In one case, our firm
had a client who was extremely concerned that he be referenced as the
petitioner, as his culture frowned upon the status of one being sued
for divorce. It was nearly impossible to convince this client that
not only was the label virtually meaningless, it could not be changed
once the process had been initiated. There are virtually no
advantages to being listed in the caption as petitioner in a divorce
(unless one argues that an advantage exists at the trial stage, where
the Petitioner has the first opportunity to present his or her case).

However, there is one advantage to "winning the race to the
courthouse" by initially serving the divorce petition. If the parties
reside in different counties, the petitioner determines the venue of
the case by serving a summons and petition captioned for a particular
county. Although the respondent can request a change in venue, he or
she must convince the court that the venue should be changed. (If the
parties reside in the same county, the divorce must be initiated in
that county.) This procedural consideration can be critical because
judicial enthusiasm for such issues as joint physical custody and
maintenance awards varies substantially from county to county.

Though there is no legal advantage to being labeled petitioner rather
than respondent other than venue considerations, there may be a
significant financial disadvantage. It is conventional for the
petitioner's attorney to draft a marital termination agreement if the
parties agree on all issues involved. Further, the petitioner's
attorney is conventionally expected to draft the judgment and decree,
which serves as the document finalizing the parties' divorce. The
petitioner incurs additional attorney fees for these services (though
having one's own attorney initially draft a marital termination
agreement can be worth the extra cost-particularly when the
opposing
attorney is less than thorough in suggesting revisions and
supplementation). Thus, you may respond to an individual expressing
the "first-to-file" myth that it may be a financial disadvantage to
be the petitioner in a divorce action.

Myth #2: "Leaving the marital home or other property may be viewed by
the court as abandonment of equity in the property."

Many individuals confuse temporary possession with ownership. They
believe that by abandoning a homestead or property, their equity in
the property may be somehow diminished or lost. While the court may
award permanent title of property to the individual utilizing it at
the time the matter is heard, this award will be offset by an award
of other property or cash settlement, in order to achieve an
equitable division.

It is erroneous for a court to reduce a person's equity in property
based upon temporary circumstances and use of property. To guard
against threat or wanton destruction or dissipation of property, it
is prudent for an individual exiting the homestead to videotape its
contents and to copy documents prior to leaving (as well as remove
family heirlooms and other irreplaceable items of a personal nature).
However, there is no reason to believe that he or she will be short-
changed of equity in a final resolution, because of "abandonment" of
property.

Courts are concerned with preserving consistency, vis-a-vis custody
and residence of children. The parties should be advised to seek
consultation with mental health and legal professionals regarding the
appropriateness of continued residence where children are involved,
without concern for a loss of equity accrued during the marriage.

A related concern is whether it may be appropriate to change locks on
the residence if the other spouse has established a separate
residence. Although technically not legal without a court order, it
may be advisable (and it will likely be endorsed by the court) if
there are safety concerns. Unless there is a court order prohibiting
his or her presence or granting possession to one party exclusively,
police cannot arrest a spouse for merely being on the homestead
property. This type of court order can be the result of a domestic
abuse petition or a temporary relief hearing.

Possession and ownership are similar terms that many lay people do
not differentiate. As a result, this distinction requires careful
explanation. Potential litigants should be assured that there is no
formal legal claim for abandonment of real estate or other property
in the family law process.

Myth #3: "Title in property is dispositive in determining a property
award."

There is a common misconception that being the title holder of
property is somehow determinative of an award by the family court. In
actuality, any property acquired during the marriage, other than
traceable premarital holdings, inheritances, or gifts received by a
specific party (which can also be divided in part if unfair hardship
will otherwise result), is subject to division by the court. The fact
that title is in the name of only one party can be inconsequential.
The court generally disregards title in dividing property.

However, courts may take title into account when determining whether
a particular asset has maintained a nonmarital component. For
example, retaining funds brought into the marriage or received by
bequest or gift in an individual account can serve as evidence that
the party intended to preserve the nonmarital nature of the asset.

Myth #4: "Support obligors have no rights" and "The system can't deal
with delinquent obligors."

Despite the common belief that child support obligors are the
maligned victims of their ex-spouses and/or the legal system itself,
there are, in fact, several protections designed for the support
obligor. First, there is abundant statutory and caselaw that protects
the income of the obligor from an otherwise greater child support
obligation. Examples are deductions for children born prior to those
for which the support obligation is determined, limitations on
consideration of bonus and overtime income, and a potential credit
for marital debts being paid in lieu of child support. In addition,
the child support guidelines limit the level of support and provide
for a decreased percentage for those with low income. Though obligors
frequently complain that guideline child support is an unconscionable
drain of their limited resources, the child support guidelines are
not designed to require the obligor to foot the entire bill for
maintaining the household.

Another common complaint is that the system is too soft on child
support obligors. Truth be told, there are self-employed individuals
who have "inaccurate" or no tax returns and are able to dodge the
system, making life difficult for child support obligees and their
children. On the other hand, there are many protections built into
the system for the child support obligee. These include the potential
suspension of an obligor's driver's license due to delinquent
payments, interception of tax refunds, liens on motor vehicles,
suspension of recreational licenses, and imputed income where it is
demonstrated that the obligor is acting in bad faith by self-limiting
income, among others. In addition, the law allows a lien on a
homestead for unpaid child support, prioritizes child support
withholding over other garnishment of wages, and does not allow
discharge of support arrearages through bankruptcy. One should not be
discouraged about the collection of a child support obligation until
these avenues have been investigated and exhausted.

Myth #5: "The trial court hears `the full story,' determines
the `truth', and metes out justice accordingly."

Many of the facts and circumstances important in the eyes and mind of
the client are likely to be of limited importance to the court. It is
unrealistic to assume that a trial court judge can unravel the
minutiae of the dynamics that resulted in the parties' current
circumstances. The issues are simply too complex, and the court lacks
time. Further, the value judgments required in reaching a "fair"
decision would be unfair to one or both parties. The court is
generally left to evaluate a "snapshot" of the parties' current
situation and to apply the law accordingly. There are a few
exceptions, such as maintenance claims (for which the courts do take
into account educational background, employment, and missed
opportunities during the marriage) and tracing assets claimed to be
nonmarital.

One spouse's claim that the other has wasted the parties' assets by
frivolous purchases during the marriage is likely to be
inconsequential to the court's final resolution. As a client of mine
was greatly dismayed to learn, premarital funds expended on legal
fees for the spouse's criminal attorney for repeat drunken driving
offenses will not be ordered reimbursed to the party who spent them.

To the chagrin of some parties, courts have very limited criteria
with which to punish wrongdoing or to reward the most admirable
behavior. Ironically, a party trying to efficiently dissolve an
unproductive marriage may face high attorney fees due to his or her
spouse dragging out the process, unwilling to see the matter finally
resolved. However blameworthy or detestable parties' behavior may
seem, it is rare for the court to award attorney fees based upon such
behavior.

Many individuals believe that if they are "in the right," their
position will be redeemed by a court award of attorney fees payable
by the other party. Some harbor the mistaken perception that an
attorney representing a family law client will rely on a court award
for compensation. As an example of the court's resistance to attorney
fee awards, I once represented an individual who was harassed by an
ex-friend, who made intrusive and threatening statements in person
and by correspondence. Although the matter proceeded to an
evidentiary hearing and an appeal involving several constitutional
issues raised by the harasser, the victim was awarded a meager $250
in attorney fees to reimburse her for the thousands expended in the
trial and appeal process.

One could argue that the courts should more frequently award attorney
fees; however, it is too often an overly complex decision as to which
party is more at fault in protracting the proceedings. Fairness is
only one of several criteria applied by the court (the parties'
respective incomes and expenses are two of the other criteria).
Whether a party has taken a position that is clearly wrong is seldom
obvious; the court reviews contrasting versions of "the truth" and is
rarely presented with a case that allows for a definitive conclusion.
The courts may fear that ordering attorney fees to be reimbursed will
only serve to lengthen the proceedings by encouraging the party
receiving attorney fees to unnecessarily continue the litigation.
Court awards of attorney fees in the family law process are unusual
and most often occur in situations in which there is an extreme
disparity of incomes between the parties.

Myth #6: "A legal separation is commonplace" and "The separation date
of the parties is a necessary component of the court's calculation in
an award of property."

Parties rarely seek a legal separation. However, when a party does
file for a legal separation, the respondent frequently counter-files
for a divorce (marital dissolution) and thereby transforms the
process into a divorce. A legal separation is usually obtained for
religious or moral reasons, or to achieve other legal means while
postponing a final divorce adjudication. Deductibility of maintenance
can be accomplished through a stipulated temporary order or other
document causing a legal separation to generally be unnecessary for
that purpose.

Some litigants perceive that a legal separation is a necessary
procedure, or that it serves as an intermediate step at a lower cost
than a full divorce. To the contrary, legal separation usually serves
to increase the costs of the divorce process unnecessarily.

The same rules generally apply to legal separation as in a marital
dissolution. Thus, the parties could potentially re-litigate all of
the issues involved in a divorce that were already resolved through
the separation process. Although a legal separation can delineate a
division of debt and property, the trial court may disregard the
treatment of debts and property when it makes a final determination
of those issues in the divorce process.

The date of physical separation of the parties is likewise not
determinative; the court only utilizes the parties' separation date
in determining the apportionment of property in unusual
circumstances. In fact, a pension plan of a spouse may be divided as
of the divorce, even if separation occurred several years prior to
initiation of the divorce. A practical consideration for this rule is
that parties frequently separate more than once prior to the
commencement of the divorce.

Parties often make the mistake of purchasing real estate after the
separation but before the judgment and decree of divorce is final
because they erroneously believe that the real estate and other
property purchased after the physical separation will not be
considered by the court in the division of property. In fact, any
real estate purchased before the judgment and decree becomes final is
partially owned by the other party by virtue of the ongoing marriage
(though a valid nonmarital claim could be made if the property was
purchased after the valuation date set by the court, as such
purchases are presumed to be nonmarital). Equity in newly purchased
property could potentially be awarded to the non-owner spouse. The
parties are well advised to defer any purchase of real estate until
after the divorce process has been completed.

Myth #7: "Attorney fees for a divorce are generally proportionate to
the assets involved."

Division of property, while an essential part of the divorce process,
is not always the major issue between the parties. Custody and
visitation, division of marital debts, insurance coverage, and
transfer payments in the form of child support or spousal maintenance
are often major issues that exhaust the parties' financial resources
when they cannot agree. Mistaken attitudes about asset division can
be costly, even in small cases. A prime example is a party who
believes that a principle is at stake and will fight regardless of
the contrary application of the law. In extreme circumstances,
parties have been known to argue over a worthless family business due
to their pride in the enterprise. In such cases, attorney fees can
serve as a functional limit on the parties' assertions of non-
meritorious claims. Such claims only serve to waste the parties'
resources and the court's time. On the other hand, some parties
dividing a substantial marital estate manage to efficiently divide
their assets with minimal attorney fees. These individuals appreciate
the wisdom of avoiding litigation and unnecessary use of attorneys.

An attitude some consider clever, but in reality is foolish, is as
follows: "I would rather pay $2,000 to my attorney to argue a point
of principle than agree to pay $200 to my spouse." This shortsighted
approach
overlooks, among other things, the possibility that the other spouse
will contribute to college costs and other necessary expenses of the
parties' children. Resources allocated to the spouse rather than to
the attorney may also lessen that individual's need for additional
property or support.

Numerous factors affect attorney fees, such as whether the client
tries to micromanage the case and the degree of obstreperousness of
the opposing attorney. Unfortunately, some practitioners "stoke the
flames of conflict" by encouraging frivolous argument and utilizing
all possible leverage to protract the process. A good family law
attorney provides laudable service by controlling fees where
possible, without compromising on the final results. The size of the
estate, while one factor in determining attorney fees, need not
correlate with the overall fees incurred.

Myth #8: "It is always best to simplify the process for
simplification's sake and use only one lawyer whenever possible"
and "Lawyers make the process more complicated than it needs to be."

There are those who believe that the parties are best served by
utilizing one lawyer, or even a paralegal service, to draft the
documentation for a simple divorce. In addition to the ethical
prohibition against dual representation, practical considerations
make this philosophy ill-advised.

In one telling experience, I observed the result of a divorce
performed for the parties by one attorney. The parties agreed to
continue occupancy of the homestead together beyond the divorce,
despite the fact that the payments required were beyond their
combined means. The property became very difficult to sell, and the
parties were completely unable to co-exist in a charged atmosphere
following the divorce. To make matters worse, the wife was expecting
to receive her share of her husband's retirement plan from the
homestead sale proceeds. The home could not be sold before the
parties had defaulted on several payments, thus causing a foreclosure
proceeding. Instead of enjoying the benefit of an equitable
settlement, there were no proceeds to compensate the wife for
releasing her right to her equity in the husband's pension plan.
Rather than the simple and efficient divorce they believed they would
obtain by utilizing one attorney, the parties spent substantial
attorney fees to pick up the pieces of a failed plan. Nor could the
wife hold the attorney clearly responsible for her failed claim -
he
was not formally representing her interests, as opposed to the
husband's. (The attorney was unethically attempting to assume a dual
role of mediator and attorney.)

There are numerous ramifications of divorce, which include
distributions of pension plans, insurance coverage, division of
assets, and preferred approaches to tax issues. Attempts to simplify
the divorce for simplicity's sake, in particular by using one
attorney or a paralegal service, seldom pay off for the parties.
Instead, the investment in a second attorney, to review the proposed
agreement and to validate that the desired goals are being achieved,
is extremely cost-effective and often helps to avoid complications
that could require court proceedings following the divorce. (In
addition, it lessens the possibility of later regret that one was
taken advantage of for not being represented in the process.)

Myth #9: "Someone 'wins' a divorce."

The goal of the divorce process is to serve the best interests of the
children, sever the parties' relationship, divide assets, and
apportion debts, insurance costs, etc., allowing the parties to
pursue a separate existence in an equitable and secure manner. In
most circumstances, this is not consistent with a declaration
of "victory" by either party. Generally, both parties have
substantially less material wealth than they started with prior to
the divorce. Occasionally, there are situations in which one party
pursues a remedy, such as permanent maintenance, which can result in
substantial gain for that party. A more frequent outcome is a
compromise arrangement, such as a set period of maintenance and a
waiver of modification of amount and/or duration of payments.

A common goal of the family law attorney is to reach a reasonable
resolution, which minimizes risk for the client and provides for a
secure and predictable future. There is a general misperception that
there is a clear "winner" in the divorce process. Most importantly,
custody "fights," as they are too often referenced, do not serve to
better the family's overall circumstances. Instead, the result is
increased bitterness and emotionally damaged litigants and children.
The Legislature has recognized and addressed this issue through the
recently passed "parenting plan" statute that allows the parties to
resolve custody and visitation issues in a manner that maximizes the
involvement of both parents and seeks to reduce the number of costly
legal battles.

If there are any real winners in the process, those who maintain
positive relationships with an ex-spouse/co-parent and their children
are the victors. Enjoying future life events (such as weddings and
college graduations), without the bitter taste of animosity, is its
own reward for those with the foresight to control negative feelings
and minimize disruption to the children. Though few parents fulfill
the common child fantasy of parents re-uniting, it is not an
unreasonable expectation that parents will make efforts to share
their children's triumphs in peace and pride.

Myth #10: "Mediation will never work in my case" or "It would appear
weak to suggest mediation."
Mediation, in fact, is well suited to the majority of divorce
proceedings. Its desirability lies in the self-determination of the
parties, the expediency of the process, reduced cost, and the
potential that it will build new avenues for communication for the
parties to resolve future disputes related to their children.
Mediation impels the parties to explore creative resolutions that can
benefit both parties, including remedies outside the boundaries of
court authority. Examples are creative divisions of property and debt
that are tax-wise (but not statutorily prescribed), or even admission
of guilt and an apology.

Complex matters are sometimes better suited to mediation than cases
involving only one or two significant issues because the
opportunities for trade-offs are more plentiful and negotiation can
be more effective. In addition, studies have shown that the parties
are more likely to abide by the results achieved in mediation than by
a court order which results from a contested hearing. The parties are
also less stressed by this process (unless it fails), which is
inevitably more expedient and cost effective than litigation. It is a
sign of strength and foresight that a party in the divorce process
makes an effort to mediate prior to resorting to the litigation
process. Mediation can even be performed effectively by non-
attorneys, such as an accountant and psychologist team.

Mediation can be particularly helpful when the parties are at
different emotional stages relative to the loss of their marriage.
The non-filing party may be at an earlier stage of the grieving
process, causing disagreements that are not legally relevant, but
that can exacerbate the legal process. Parties who can agree to
disagree on certain issues and maintain the ability to communicate
and resolve issues through mediation make a positive step toward
reaching an overall resolution. Potentially disastrous consequences
of a high-conflict divorce can be avoided through mediation. The
court system increasingly recognizes this through such requirements
as notification in a dissolution summons of alternative dispute
resolution procedures.

Myth #11: "There is a particular age at which children may dictate
their custodial arrangement."

"At what age can children decide with whom they want to live after a
divorce?" is an all-too-common and misinformed question. In
actuality, the child may be asked by social services (and on rare
occasion by the court itself) about his or her feelings regarding
each parent and their respective living environments. Children of
advanced age may voluntarily express a preference to live with a
certain parent. However, there is no rule that a child over a certain
age may determine his or her future living status.

Instead, the court considers, to a degree, an expressed preference
determined by the age and maturity of the child, as well as the
reasons provided by the child. A mature 12-year-old may be taken more
seriously in his or her preference than a 16-year-old who has a
mental or emotional infirmity and/or expresses his or her viewpoint
in an immature or irrational manner. Further, courts are cognizant
that children approaching majority are likely to "vote with their
feet" and effectively determine their primary
custodial parent. Courts are hesitant to resist the preference of a
child who is likely to run away from the home of the other parent.

Myth #12: "The children are doing great!"

According to one study, 37 percent of children from divorced homes
were psychologically troubled and manifested moderate to severe
clinical depression, even five years after finalization of the
divorce. Children deprived of frequent access to their fathers tend
to show diminished self-esteem, lasting many years after the divorce.
Further, almost one-half of children continue to show ongoing
negative consequences from having gone through the divorce
experience. The majority of children who have experienced a divorce
between their parents show clear signs of emotional, psychological,
behavioral, and social distress. Many have significant adjustment
problems and show lower academic achievement when compared with
children from parents who have not divorced.27

Counseling is the key to lessening the emotional harm to children
experiencing the divorce process. Whether individual or family,
quality counseling will pay dividends far beyond the investment of
time and funds expended. Further, self-help is encouraged and
recommended. For example, local author Vicki Lansky has written a
book entitled Divorce Book for Parents, which is extremely
informative and practical.

Bonus Myth: "Divorce attorneys live an intolerable existence."

A family law practice provides variety and gratification. Though the
purpose of representation may be to gain advantages for one's client,
the overall objective of the process is to achieve a result that will
serve the interests of justice, long-term security for the parties,
and the best interests of their children. While many individuals,
including attorneys, perceive the day-to-day existence of a divorce
attorney to be bitter, thankless, and oppressive, it can be a
fulfilling and rewarding experience to represent individuals who are
facing this difficult and arduous process. It is not without its
challenges, but the rewards of impacting a child's life in a positive
way can be indescribable.

The family court bench and bar, as well as the Legislature, actively
seek solutions to the enigmas that plague family dynamics. Bar
association committees, task forces and various advocacy groups
continuously suggest reforms to improve the family law process. The
result is a system that has made great strides in achieving justice
and, more importantly, is increasingly respectful of children and
their needs.

I hope that the above recitation helps to illuminate some of the dark
corners of a process feared by some and detested by many, but
hopefully respected by colleagues who have oft been heard to
comment, "I handled a divorce once - I'll never do that again."

Charles Goldstein practices family law in
Minneapolis, Minnesota. He is committed to providing accessible,
effective and reasonably priced family law litigation and mediation
services. For a free consultation, call 952.449.5299.
http://www.fmlylaw.com