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5 Myths of Divorce Litigation

Posted by J. Benjamin Stevens | Jan 03, 2019 | 0 Comments

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Photo Credit: Hutomo Abrianto

A divorce is not an everyday occurrence for most individuals.  Because of this, most of our clients come to us seeking help in a divorce with certain ideas and preconceived notions as to what they expect their divorce to look like.  Whether they get these ideas and notions from television, magazines, or even from friends and family members who have experienced their own divorce, there are certain myths which are quite common about the divorce process. Below are some of the more common myths and misconceptions our clients bring with them when they first meet with us.

1.  Clients new to the divorce process believe that since their spouse did not spend significant time with their child(ren) during the marriage, then they should not receive significant parenting time with them once separated. In South Carolina, there are parenting schedules which are much more weighted towards shared custody or a 50/50 split of parenting time with the children. We have seen a trend recently, towards these schedules being court-ordered more often, especially in cases where there is no evidence of "unfitness" for either parent.  The family court tends to grant to each parent the opportunity to be involved in the lives of their child(ren).  However, this doesn't mean dead-beat parents start out with shared or 50/50 custody. The temporary hearing will be the opportunity for the Court to determine which schedule is best for your children, so be sure to provide your attorney will any and all evidence demonstrating your spouse's parenting habits or lack thereof.

2.  New clients tend to think that since their spouse cheated on them that they can "take them to the cleaners" during a divorce.  Adultery can be a bar to alimony in South Carolina, which is a huge plus if our client is the spouse earning the most money in the marriage, but when it comes to the division of other marital property, marital misconduct, such as an affair, is given much less weight in determining the division of this property.  For example, if your spouse spent thousands on weekend trips with their paramour and on buying gifts for their paramour, then the court is more likely to give them a smaller portion of the marital property. However, if your spouse was simply having an affair, but not wasting the marital resources or property to do so, it probably won't have much effect on the final division of the assets.  Essentially, the court will consider misconduct on the part of a spouse only in the most extreme cases when it comes to the division of marital property.

3.  Many clients are under the impression that they did all of the work and earned all of the money during the marriage, so all of the assets should belong to them.  These clients will argue that their spouse may have bought an asset for themselves, "but s/h used the money that I earned to purchase it, thus it is technically mine!"  While the logic in that statement can be easily understood, unfortunately, in South Carolina, anything acquired during the duration of the marriage is considered "marital property", with some limited exceptions.  South Carolina also follows a division of property model called "equitable distribution."  This theory allows the judge to divide the property as fairly as possible between the spouses.  So, for example, if one spouse is the sole bread-winner and the other spouse stays at home taking care of the kids, any asset bought during the marriage with the money earned by the working spouse will be considered marital property and will be equitably divided upon divorce regardless of whose name is on the title or who earned the money to purchase the item.

4.  A lot of clients expect the court to divide the entire marital estate evenly or 50/50 regardless of the length of marriage or fault in the break-up of the marriage.  This type of equal division is more often seen in marriages of longer durations (over 10-15 years), and the family court will try to get as close to a 50/50 split as they can while keeping the division fair and equitable as well.  In South Carolina, there are many factors that the court will consider when dividing the property, such as the age of the parties, their health, their employment (or employability), misconduct that led to the break-down of the marriage, and their financial contributions to the marriage, just to name a few. Because there are many clients that do not have marriages of significant length, the hope of a 50/50 split in the marital estate is not necessarily reasonable in every case.  For example, a marriage lasting just two or three years will typically be resolved with the two spouses dividing their property based on what belonged to each party coming into the marriage, especially when there are no children to consider. These marriages typically don't have significant marital property after such a short period of time.  Regardless of the length of your marriage, your divorce attorney should have you complete a full financial statement as well as a property inventory assessment to be able to properly advise you on how the family court may divide your assets.

5.  Last, but not least, new divorce clients assume that since their divorce is not that complicated and that they are on such good terms with their spouse they do not need to hire an attorney.  Simply reading over the previous four myths and misperceptions should give you a good idea of the many different ideas on how clients believe their divorce might proceed, but in reality, the laws of South Carolina may dictate something very different.  Family law attorneys deal with divorces on a daily basis, whereas for most clients, they will only deal with a divorce once in their life.  Even if there is nothing to argue about or any contested issues on the table, it is always wise to consult with an attorney.  Even if you think your divorce is simple and uncontested, an attorney will be able to guide you through the process and answer any questions that you may have in order for you to get the most equitable outcome possible.

The experiences we have in life help shape how we will handle future events in our lives.  Many people have never experienced a divorce before, so when they are going through one, they do not have the past experience of a divorce to help guide them through the process.  Knowledgeable family law attorneys have such experience that clients need when facing these situations.  The Stevens Firm, P.A. - Family Law Center has provided exceptional legal counsel and support to families throughout South Carolina for over two decades, handling all matters of family law, such as child custody, child support, and divorce. We are well-equipped to handle all divorce and family law matters, no matter your circumstances. Contact us to schedule an initial consultation.

About the Author

J. Benjamin Stevens

Senior Partner

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