From Custody to Affairs: 5 Common Divorce Myths


When I meet with a client for the first time, the overwhelming majority come in with some expectations and preconceived notions of the law and how those laws will affect their case.

It is very common for clients to discuss their issues with friends (many of whom have been through a divorce themselves), or clients have researched on the Internet for information regarding divorce and custody cases.

Other times, a client’s expectations of how a case will proceed come from their own perception of what seems fair and just. Some of the advice clients get from outside sources can be (at least partially) correct.

However, there is no shortage of inaccurate or misleading information on the Internet, and while a friend may have your best interest at heart, their information can also be unintentionally misleading.

Whatever the cause, clients can come into the office with a heap of misinformation and distorted versions of the law.

Here are some of the most common inaccuracies regarding divorce I have heard, and I hear all of them on a regular basis.

Once my child turns 13, they can decide where they want to live

I have no idea where this belief comes from, but it is by far one of the most frequent pieces of misinformation that clients have.

There is one single inquiry in New York State (and many others) when it comes to determining custody — the best interest of the child.

Although the child’s wishes can also be considered, it is definitely not the main determining factor. The older and more disciplined the child is, the more heavily a court will weigh his or her wishes.

Once the child is legally an adult, at the age of 18, they are no longer subject to a custody order from the court. Then, and only then, can the child determine where they want to live.

If the property is titled in my name and/or I have always made the payments, it is my separate property and my spouse has no claim to it

As unfair as this may be, it is also incorrect.

Typically, people come in believing this with relation to a car or house. If you purchased the house during the marriage, it is martial property — with rare exception — meaning both parties have a claim to their share of the asset.

It makes no difference which party holds the title or mortgage. The same can be said even if one party made every single payment on the house during the marriage, and the other spouse never contributed a dime: If those payments were made during the marriage, with marital funds, it is marital property.

I need to get letters of reference from my friends and family members

On more than one occasion, I have had client’s come in with a folder full of letters from friends and family members, stating what a great parent they are.

It is fantastic to line up witnesses who will testify on your behalf, and in the event the case proceeds to litigation, they will certainly be necessary. However, in a court of law, a letter is practically meaningless.

It is not sworn to under oath, and it is not notarized. It has no evidentiary value since for all the court knows, the client typed them all up on their computer at home and simply forged the signatures.

If a third party has something compelling to say that must be brought to the court’s attention right away, discuss having your attorney draft an affidavit for that person.

My spouse had an affair, so I am going to get everything

This is probably the one I see and hear the most. It is a notion that I absolutely understand, and I have a great deal of sympathy for clients when they learn this is not entirely true.

I cannot tell you how many times a client has looked at me with shock when I tell them that yes, even if your wife had an affair and even though it is her pressing for the divorce, a court will still award her an equitable share of marital assets.

New York law lists the specific factors a court can consider when dividing the property and awarding maintenance. Noticeably absent from these factors is fault.

In fact, in New York, appellate courts have ruled it is reversible error to consider fault in dividing the property.

There are rare and specific occasions when something like an affair during the marriage may have an effect on the distribution of assets or maintenance (for example, if the cheating spouse spent marital money to carry on the affair), but those cases are few and far between.

Generally speaking, courts do not want to get involved in whose fault it was the marriage broke down, and it has very little effect on how property and money is distributed in a divorce.

I want to ask the court to grant me sole custody of my children

This generally just comes from a misunderstanding of what “sole” custody means. In New York, there are two types of custody: legal and physical.

Typically, when clients tell me they want “sole” custody, what they are referring to is physical custody, or the actual time you spend with your child and where the child primarily resides. Physical custody comes in three forms:

  • Shared custody, which is a 50/50 split between both parents;
  • Primary physical custody, which means the child resides with one parent most of the time and has visitation with the other parent on a regular basis; and
  • Sole custody, which requires the child to live with one parent, and the other parent has no scheduled visitation or contact with the child.

Unless there are extremely compelling issues in a case, such as one parent has serious mental health issues, there has been a history of abuse or severe drug addiction, sole custody will not be considered.

I highly recommend parties do not even request sole custody from the court. This is because when awarding custody, the only question the court has to answer is what is in the best interest of the child.

However, there are factors the court uses to make this determination, and paramount among those factors is whether a parent will foster a healthy relationship with the other parent. If a party requests sole custody in a case where it is not warranted, they are telling the court they want to cut off access between their child and the other parent.

It is very difficult, if not impossible, to then convince the court that the parent seeking sole custody will foster a constructive relationship of any kind with the other parent.

As you can see, most of the above “myths” do have exceptional circumstances where they may be true. However, the majority of cases will not fit into those extreme conditions, which make it crucial to meet with a knowledgeable attorney who can advise you on the law and specific facts of your case.

Please note that I practice out of Albany, New York. The statements of law contained above pertain to New York law, so if you live elsewhere, be sure to discuss with a local attorney how these issues may impact your case.

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