Busting Common Divorce Myths (Part 2)

Last month, we shed some light on the reality behind three major misconceptions about divorce. Divorce, child custody, alimony payments, prenuptial agreements, and other family law issues are topics that many people are reluctant to discuss in detail and, in general, tend to harbor myths that persist in the popular consciousness. Therefore, we’re using our expertise to illuminate the truth about two more common misconceptions about these topics in today’s blog:

Myth: The default conclusion in a divorce is that each side gets half.

In a divorce case, the main thing that courts are concerned with is the equitable division of assets, which may mean that everything isn’t equally divided. The goal is to make the distribution of assets as fair as possible, not as evenly split as possible. When deciding how assets and debts will be divided after a divorce, the court takes the financial standing of each partner into account. If one spouse has a lower income or less nonmarital/separate assets than the other, they may be awarded more than half of the available, joint marital assets. Or the Court may equally divide the assets but require the higher earning party to take on more than half of the parties’ joint marital debts. This is because the spouse with the higher income has better means of handling those debts and acquiring new assets after the divorce is settled.

In a marriage, property is legally divided into two types: marital assets and nonmarital assets. Assets acquired during a marriage are considered marital assets (though there are some exceptions), whereas assets acquired before a marriage or by inheritance are generally considered nonmarital assets. Marital assets are usually divided evenly between spouses, while nonmarital assets tend to stay with their original owner by default. However, certain assets may occupy a gray area and therefore may be divided at the discretion of the court. For example, retirement accounts or other comingled assets are typically divided in a way that the court views as equitable.

Myth: Parenting Time or visitation can be withheld by the custodial parent if the noncustodial parent fails to pay their child support.

Child-support payments and parenting time are two entirely separate issues. It’s not uncommon for a parent who’s been awarded primary custody to feel entitled to withhold the noncustodial parent’s parenting time if they get behind on their child support payments, but this is not allowed. Furthermore, if the reverse situation occurs and the custodial parent withholds parenting time from the noncustodial parent without the court’s consent, this does not entitle the noncustodial parent to withhold child support payments. Again, the two issues are legally completely separate from one another. If your former spouse is withholding child support payments or your awarded parenting time, those are both issues best addressed with the courts through your attorney.

If you have some questions of your own about divorce you’d like us to clear up, or if you need assistance with anything relating to family law, contact Oxendine Law at (770) 497-8688 today. Remember to follow us on Facebook, Instagram, and Twitter for more information and updates.