Myths of Family Law

Everyone thinks they know how family law works, but what we see in our pop culture is often at odds with what happens in the real world. Learning about the differences can be an eye-opening — and sometimes expensive and emotionally painful — experience. Let’s take a look at some common situations and the “myths” vs. the “realities.”

Hollywood Says I Get Half

 MYTH: “I get half of everything in a divorce, no matter what. I’ve seen it in so many movies!”

REALITY: Apologies to Tinseltown, but it is not that straightforward. First a judge has to determine if assets are separate property (owned by just one spouse as defined under Georgia law) or marital property (jointly owned as that is defined under Georgia law). Then a determination has to be made by the judge (or jury) about what constitutes “equitable distribution” in this particular case – what is fair.

It’s Mine If My Name is on the Title, Right?

 MYTH: “If my name is the only one on the title, then I retain sole ownership.”

REALITY: Not necessarily. Property that was originally separate property may become marital property if certain actions are taken over the course of the marriage as provided under Georgia law. Having a spouse’s name added to a deed on what was separate property has a great potential to make that property marital property.

What About the Stuff I Had Before I Got Married?

 MYTH: “If I brought it to the marriage, I can take it away when the marriage ends.”

REALITY: Again, not necessarily. A house both spouses lived in may be considered marital property if certain actions are taken during marriage, even if only one spouse is on the deed. Setting aside assets as separate property in a prenup can provide protection.

Prenups Don’t Really Help

 MYTH: “Prenups can easily be overridden by a judge during a divorce.”

REALITY: Celebrities may challenge their prenups, but that doesn’t mean they will win. A prenup is a legally binding contract and like all contracts has the strength of law behind it. Courts routinely enforce prenuptial agreements, so they can be a valuable tool in preserving your assets. On the other hand, be careful not to sign a prenup giving away rights you would have had otherwise in a divorce.

My Spouse Makes More Than Me, So I Will Get Alimony

 MYTH: “The spouse who makes less, or a non-working spouse, is automatically entitled to alimony from the breadwinner spouse.”

REALITY:  This is another of those areas where the judge has discretion and will look at factors including: Do both partners work? How long have they been married? What is the standard of living the support-seeking spouse had during the marriage? Does one or both spouses have additional financial resources?

All these factors and more will go into determining how much alimony, if any, will be paid, and for how long. In general, however, alimony can be less generous, and often doesn’t last as long, as it did for earlier generations.

Does Adultery Matter?

 MYTH: “Adultery isn’t an issue in modern divorce cases.”

REALITY: In fact, adultery is one of the most common grounds for divorce in Georgia and can still have an impact on certain issues in a divorce. Adultery that is the cause of the dissolution of marriage may bar the “cheating” spouse from receiving alimony. Also, a spouse who allowed their paramour to spend time around the children may find this has a negative effect on their custody arrangements.

Baby Mamas and Baby Daddies

 MYTH: “Both parents of a child share rights and responsibilities for a child whether they are married or not.”

REALITY: In Georgia, the mother is considered to have sole custody and all legal rights until the biological father legitimates the child. If the father neglects to do this and falls out with the mother, he can find himself cut off from his child until he initiates a legal action to set out his rights. Even after initiation of the suit, Georgia law will allow the court to consider whether it is the best interests that the child be legitimated.

Do Adoptions Have to be Expensive?

 MYTH: “Adoptions are always ruinously expensive, costing tens of thousands of dollars.”

REALITY: Adoption certainly can be expensive, with costs ranging to $30,000 or more depending on the agency used. In-family adoption, special needs/foster care adoptions and charitable adoption agencies can all lead to a much more affordable adoption.

My Retirement Account Can’t Be Divided, Can It?

 MYTH: “If you try to split an retirement account, you’ll end up paying big penalties.”

REALITY:  Most retirements accounts and some pensions are divisible in a divorce. Some accounts, such as an IRA, can simply be transferred to another IRA without the need of an additional court order.  Other accounts, such as 401(k), need an an additional court order to be prepared so that the account can be divided. Once the spouse receives his or her share from the other’s spouse retirement account, the receiving spouse may have to pay taxes and penalties if he or she withdraws funds from the account after the division.  Many pensions,such as those related to a governmental entity, cannot be divided by the court.

The Takeaway

 Go into any legal proceeding with an open mind. Know what outcome you want but be willing to listen to your attorney about how likely that outcome really is. If your lawyer says that your expectations are not realistic, it may be time to revise them. Remember your attorney wants the best-case scenario for your case, because then you both end up with the best result possible.

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