Fiction: Before filing for divorce, we need to be living separately.
Fact: In Massachusetts, there is no requirement for a couple to be living separate and apart in order to file for divorce. The absence of any such restriction has “played well” in the recent recession allowing couples who cannot afford two households to live together even after divorce.
While this is by no means an optimal situation, it certainly does provide an option for those with financial restrictions.
Fiction: When we divorce, we need to divide all our property at the time of divorce.
Fact: You do not need to sell your home and divvy up all your property in order to obtain a divorce. However, you should be quite explicit as to when and how assets will be divided. For example, if the custodial parent is going to remain in the marital home with the children, your agreement should specify the following:
Events which would trigger a sale (e.g., high school graduation of youngest child, marriage of custodial parent)
Liability for house upkeep and repairs
Liability for mortgage as well as entitlement to tax deductions
Division of sale proceeds
The same specificity should guide your decision-making in stipulating terms for the division of all assets, including retirement funds. However, with respect to retirement funds, division must take place near to the time of divorce.
Fiction: If she wants a divorce, she will have to leave the house.
Fact: It does not follow that the person who asks for the divorce is one who has to leave the marital home. Indeed, the division of property is not determined by who makes the decision to divorce. Instead, the court uses seventeen factors to reach an equitable division of property which has no relationship to which party spearheads the divorce action.
Fiction: Wait until the judge hears what he did; justice will surely be served.
Fact: Conduct is only one of the seventeen factors for determining the division of property and, when used as a rationale for a disproportionate division, requires a trial to prove fault. A very small percentage of divorces are actually tried; even when individuals feel wronged and even when they feel they will benefit from waging a legal battle, the costs in terms of time and money dissuade most from pursuing this route. Then, too, of the few that follow this course, most do not reap the benefits they anticipated. Some even emerge worse off than if they had not sought “justice” from the court.
Fiction: If I get divorced, I will lose access to my spouse’s health insurance.
Fact: This is true if your spouse is employed by a company who is self-insured (e.g., IBM, Microsoft). Employers with self-funded health plans are exempt from Massachusetts law which requires employers to offer access to ex-spouses for continued group health coverage. If, on the other hand, the employer is not self-funded, the ex-spouse can continue coverage after divorce at no additional cost provided it is clearly specified in the parties’ Agreement.
Fiction: Our divorce is going to be really quick and easy since neither of us is contesting the divorce.
Fact: Quick and easy has little to do with the fact that the divorce is not contested. In the final analysis, the majority of people seek a non-contested divorce. The irony is that although neither is contesting the actual divorce, there may be many points of contention. And, even if there is not disagreement on major areas of property, support, and custody, the couple should be methodical and thorough in crafting the terms of their Agreement. Issues resolved now represent the most cost effective route to ensuring the longevity of your agreement, freeing you from a future of misunderstandings and returns to court.
This discussion will be continued in CMDR’s May’s monthly article.
See CNBC.COM for their version of “10 Common Divorce Myths” (http://www.cnbc.com/id/42298130)
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