If you choose to get a divorce or if you expect to be divorced, you’ll quickly find that almost everyone wants to give you advice.

You should take that advice only from a knowledgeable divorce lawyer. Why?

A variety of myths and misconceptions continue to persist about divorce, and the advice-givers, usually with the best intentions, often pass along those myths and misconceptions to others.

DIVORCE REQUIRES AN ATTORNEY’S HELP, AND THAT’S NO MYTH

In New York, from the very beginning of your divorce, seek your legal advice and guidance only from an experienced Westchester County divorce attorney. Your future is too important to risk.

Myths about divorce cause uninformed people to choose the wrong options and take the wrong actions. Your divorce attorney can explain the laws and debunk the many myths about divorce.

Most of these myths are based on the way divorce used to be half-a-century ago or more. These myths and misconceptions include but are not limited to:

MYTH #1: IF YOU COMMITTED ADULTERY, YOU MIGHT LOSE EVERYTHING

Adultery alone has no impact when marital assets are divided.

But if you’ve also spent marital assets recklessly, adultery could factor into the division of assets.

Either way, you will not lose everything.

MYTH #2: YOU CAN DIVORCE ONLY IN THE STATE WHERE YOU MARRIED

That’s false. You can file for divorce in the state where you live now if you meet the residency requirements for a divorce. These are the residency requirements for New York State:

1. You or your spouse have resided continuously in New York State for at least two years before divorce papers are filed; or

2. You or your spouse have resided continuously in New York State for at least a year before divorce papers are filed and (1) you married in this state, or (2) you resided in this state while married, or (3) the grounds for your divorce happened in this state; or

3. You and your spouse are both residing in New York State when the divorce papers are filed, and the grounds for the divorce happened in this state.

MYTH #3: MARITAL ASSETS, PROPERTIES, AND DEBTS ARE DIVIDED EVENLY

The division of property in a divorce in New York is “equitable” but not necessarily precisely even or equal.

A variety of factors are considered by a judge when that judge divides marital assets, properties, and debts. New York divorce judges are not required to make a precise 50/50 division.

MYTH #4: MEN CAN’T GET ALIMONY

Decisions about alimony are not based on antiquated biases and prejudices.

New York has established gender-neutral alimony guidelines, so alimony orders in this state are based strictly on the economic realities of each ex-spouse’s income and expenses.

Women don’t always get child custody, either. That’s another myth that needs debunking.

The law requires courts to make custody rulings based on the best interests of the child. If living with the father is in a child’s best interests, the court must make its custody ruling on that basis.

MYTH #5: SOMEONE HAS TO BE “AT-FAULT” IN A DIVORCE

In the past, New York required a reason for divorce – adultery or abandonment, for example. But in 2010, no-fault divorce became the law in this state.

Now, one spouse’s claim that there has been an “irretrievable breakdown” in the marriage is sufficient for obtaining a divorce.

However, before a New York judge will finalize a no-fault divorce, the spouses must resolve any divorce-related disputes such as property division, alimony, and child custody and support.

Those resolutions may be agreed upon by the spouses or imposed upon them by a court order. Spouses may also still seek a fault-based divorce in New York on these grounds:

” cruel or inhuman treatment (that is, physical or mental abuse)
” abandonment for at least one year
” incarceration for at least three years (for a felony conviction)
” adultery

MYTH #6: BOTH SPOUSES MUST AGREE TO A DIVORCE

This hasn’t been true for decades. A manipulative spouse may complicate or delay the divorce process, but if you want a divorce, it is your right under the law, and no one can stop you.

Nevertheless, here in New York, you should be advised and represented from the beginning of the divorce process by an experienced Westchester County divorce attorney.

MYTH #7: A DIVORCE INEVITABLY MEANS A COURTROOM TRIAL

Actually, fewer and fewer divorces these days require courtroom trials. “Collaborative” divorce, mediation, and arbitration are increasingly popular paths for resolving the disputes in a divorce.

Yes, you have to file divorce papers with the court, but if the spouses can agree on all of the issues, a divorce may be resolved without a trial or without either spouse having to appear in court.

MYTH #8: CHILDREN GET TO CHOOSE WHICH PARENT THEY’LL LIVE WITH

As mentioned above, New York requires the courts to make custody rulings based on the best interests of the child. Neither parent can presume to have an advantage when it comes to custody.

If a child has a preferred parent, the judge may consider that preference as one of the factors guiding the custody determination, but children don’t just automatically get their choice.

MYTH #9: SECOND MARRIAGES ARE MORE LIKELY TO SUCCEED

The National Marriage Project at Rutgers University reports that the divorce rate for second marriages is 60 percent. For third marriages, researchers tell us the divorce rate is 73 percent.

MYTH #10: YOU MUST BE REPRESENTED BY A DIVORCE ATTORNEY

Technically, this is indeed a myth. The law in New York actually does allow you to represent yourself in a divorce proceeding.

Realistically, however, you must have a good divorce lawyer’s insights, advice, and representation. Many who begin their divorces independently inevitably find that they need an attorney’s help.

There are a number of reasons why you need an attorney to advocate on your behalf in a divorce. For starters, your lawyer can explain fully all of your legal rights and options.

Your attorney will be familiar with all of the pertinent laws and legal procedures. Without an attorney, even a mistake in your legal paperwork could seriously prejudice or delay your case.

MYTH #11: A LAWYER WILL COST YOU TOO MUCH

Often, what starts as a simple, friendly divorce can run up against acrimonious issues that require knowledgeable, experienced legal guidance.

Many realize too late – when the divorce order is final – that they gave up rights or lost out on property or assets that should have been theirs.

Don’t tell yourself that you cannot afford a good divorce lawyer’s advice and services. Too often, failing to have a lawyer ends up costing more than retaining a good one.

When you divorce, you must separate the myths and misconceptions from the facts. Get the legal help you need if you are divorcing or expecting to divorce in New York. It’s your right.

By: Kimberly Pelesz

Family law and criminal defense attorney Kimberly A. Pelesz received a B.S. degree magna cum laude and an M.P.A. degree summa cum laude from Binghamton University. She earned her J.D. from Pace University School of Law in White Plains, where she was selected for Phi Alpha Delta. Her charitable activities include work with My Sisters’ Place in White Plains and the Westchester County District Attorney’s Humane Education Taskforce.

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