By Freda Roberts, Of Counsel
The myths and legends surrounding divorce could fill a book. In this post, I’m going to clear up some of the most common misconceptions I encounter in my practice as a divorce attorney.
- Myth #1: It’s important to identify who’s at fault to dissolve a marriage.
- Realty: This is not true. In Connecticut, a divorce may be granted on a No-Fault or a Fault basis. An overwhelming majority of divorces are granted on No-Fault grounds. That means a person who wants to dissolve his or her marriage does not have to prove that the actions or behavior of one spouse are the reason for the divorce. Or why a court should grant it. The only criteria that must be met to obtain a no-fault divorce is an allegation in the complaint (the legal document that commences a divorce action) that the marriage has broken down irretrievably with no hope of reconciliation.
So, does fault ever matter? Sometimes. Fault, or the causes of the breakdown of the marriage, is one among many factors that a court may consider in making alimony and property orders. Specific laws or statutes govern the court’s authority to issue alimony and property division orders. Whether the causes of the breakdown of the marriage are important is at the full discretion of the court and is determined on a case-by-case basis.
- Realty: This is not true. In Connecticut, a divorce may be granted on a No-Fault or a Fault basis. An overwhelming majority of divorces are granted on No-Fault grounds. That means a person who wants to dissolve his or her marriage does not have to prove that the actions or behavior of one spouse are the reason for the divorce. Or why a court should grant it. The only criteria that must be met to obtain a no-fault divorce is an allegation in the complaint (the legal document that commences a divorce action) that the marriage has broken down irretrievably with no hope of reconciliation.
- Myth #2: If I hold the title to an asset, I own it, and it can’t be taken away in a divorce.
- Reality: The title of an asset does not equal ownership in a divorce. This is a common misunderstanding among people going through a divorce. Just because you hold the title to an asset such as a house, a bank account, or a business doesn’t necessarily mean that asset will ultimately belong to you after the divorce.
In this state, all property, regardless of when it is acquired and how it is titled, does not determine its final disposition. That includes property acquired before marriage, inheritances, stock, and retirement accounts. All those asset categories (and many others) are subject to division in a divorce. That is not to say that facts regarding how or when the property was acquired are irrelevant. Those facts may be very important in persuading a court or opposing counsel the reason it should be fully or partially awarded to one or the other spouse.Signing a prenuptial agreement or establishing a trust before getting married is a way to attempt to protect assets and establish ownership in the event of divorce. That is a blog post for another time.
- Reality: The title of an asset does not equal ownership in a divorce. This is a common misunderstanding among people going through a divorce. Just because you hold the title to an asset such as a house, a bank account, or a business doesn’t necessarily mean that asset will ultimately belong to you after the divorce.
- Myth #3: If I am awarded sole custody of my child, my spouse will never see them.
- Reality: An award of sole legal custody to one parent does not mean the other parent will not be able to see or visit the child. And that parent still has the right to access the educational and medical records of the child. When a parent is awarded sole legal custody, he or she is responsible for making all final decisions about the child or children, such as those regarding medical and educational issues, religious instruction, and those involved with the child’s general welfare.
The standard by which custody is determined is the ‘best interests of the child.’ In determining a child's best interests, the courts are guided by several factors outlined in our laws and statutes regarding custody.
- Reality: An award of sole legal custody to one parent does not mean the other parent will not be able to see or visit the child. And that parent still has the right to access the educational and medical records of the child. When a parent is awarded sole legal custody, he or she is responsible for making all final decisions about the child or children, such as those regarding medical and educational issues, religious instruction, and those involved with the child’s general welfare.
- Myth #4: If we’ve worked out the separation on our own, we don’t have to submit a financial affidavit.
- Reality: Not true. Financial affidavits must be filed in all divorce cases regardless of whether the parties going through a divorce enter into a separation agreement or if the case is going to trial.
A financial affidavit is a sworn statement of current income, expenses, assets, and liabilities. It is one of the most critical documents to complete when going through a divorce. Each party must complete his or her own affidavit prior to getting a divorce.
- Reality: Not true. Financial affidavits must be filed in all divorce cases regardless of whether the parties going through a divorce enter into a separation agreement or if the case is going to trial.
While these are some of the more common misconceptions I encounter in my practice, they are far from all of them. If you’re considering a divorce, I urge you to work with an experienced family attorney. Our job is to ensure that you end that chapter of your life in a way that allows you to move forward with dignity and the resources you need. If you have questions, reach out to me by email or by phone at 203-326-5145.
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Freda Roberts is an attorney with Siegel, Colin & Kaufman, PC. Her practice encompasses issues surrounding divorce and family law, including such areas as dissolution of marriage, property distribution, alimony, child support, child custody, post-judgment modification of alimony, child custody, and prenuptial agreements. She brings over 15 years of legal expertise to her position, having worked exclusively in family law since 2006. Super Lawyers have recognized her as one of its “Rising Stars” six times. Contact her in the Stamford office at (203) 326-5145 or by email to schedule a consultation.