In our many years of doing divorce mediation, we’ve consistently seen parties with misconceptions about divorce. These are some of the most common:
1. The Fiction: I can’t get divorced if my spouse won’t agree. Just last week, a client called saying he was interested in mediating, but his wife refused to give him a divorce. He was despondent because he thought that meant he had to stay married.
The Facts: New York, like every other state in the country, has no-fault divorce. Therefore you don’t need grounds to divorce, and your spouse can’t prevent you from seeking one. We once reviewed a separation agreement in which both parties agreed not to seek a divorce – even this agreed upon term would not hold up in court if a party later challenged it and sought a divorce.
However, unfortunately for our caller, if his wife won’t cooperate and mediate, his only recourse is to file for a litigated divorce in court. With an average middleclass litigated divorce costing around $50,000 as opposed to about $5,000 for a mediated divorce, all this Wife has done by refusing to mediate is waste the family’s money with a costly court case.
2. The Fiction: The assets in my name belong to me alone. Couples are sometimes surprised that they can’t claim as completely theirs any asset that is in their name alone.
The Facts: As long as a couple acquired an asset during the marriage (with a few exceptions, such as an inheritance), it is irrelevant whose name the asset is held in. If a couple wants to agree to split their assets according to what each has in their own name, that’s their prerogative. But otherwise, bank accounts, brokerage accounts – all property – is marital. So don’t worry if the family home you bought after marriage is in your spouse’s name alone. It still belongs to you too.
3. The Fiction: A signed Separation Agreement means you’re divorced. The divorce process is often confusing to parties. After couples mediate terms and sign a legal separation agreement, many believe they can simply submit the Separation Agreement to the courts to receive their divorce.
The Facts: If it were only that simple! The courts require a multiple of documents, including affidavits from both parties, which have to be submitted with the Separation Agreement in order to properly file for divorce.
4. The Fiction: Even in an uncontested divorce, the parties have to appear in court. Though parties understand that they can work out the terms of their Ray Ban outlet Separation Agreement in mediation without ever stepping into a courtroom, they are then concerned that they have to appear before a judge to file for their divorce.
The Facts: it’s Good News! The additional documents the courts require ask for basic facts, such as name, social security number, addresses etc. So no further discussions between the parties are needed and the documents (with the separation agreement included) are simply filed in the county clerk’s office.
5. The Fiction: A married couple can draft an ordinary contract between themselves deciding certain issues. I included this myth though it might not be very common, because making this mistake can have significant consequences. A couple who came to us to mediate their separation agreement, presented us with a contract they’d signed between themselves. It had been drafted by a lawyer friend. (Needless to say, not a divorce attorney!) The contract contained terms for the wife to buy the husband out of their marital home. The wife had gotten a very good deal from her husband – he was selling his share of the house for a few thousand dollars.
The Facts: An Ordinary Business Contract between a Married Couple isn’t Worth the Paper it’s Written on! It’s true that couples can reach partial or interim agreements before they’ve signed a Separation Agreement. These are known as Postnup agreements. But they must follow the same strict rules as Prenups, (see our prenup blogs!), which are very different from ordinary business contracts.
As mediators who are also lawyers, we realize that the divorce process can seem like an enigma wrapped up in riddles. But we are here to help demystify the misconceptions and ease anxieties about how the process works.