Divorce is hard, however, divorce in Gilbert, Arizona is something that happens to over half of the people getting married. Maricopa County has a higher than average divorce rate. Although, there are plenty of financial advantages of being single and regardless of why your relationship is ending, the legal process of getting a divorce can be confusing, time-consuming, and expensive. Our Gilbert divorce attorneys recommend consulting with an experienced family lawyer when proceeding forward with ending a marriage.
Unfortunately, plenty of myths can stop you from protecting yourself and your needs when seeking a divorce in Gilbert, AZ. Also, these false statements that are out there often make a difficult situation even worse. You can’t make the correct decisions when given mis-information. It’s easy to come across misinformation or legal myths that are not only misleading but harmful. Therefore, identifying these Divorce myths and misconceptions is essential for making your divorce as pain-free as possible.
MYTH: If Your Spouse Cheated, You Have a Good Chance of Getting Everything
Divorce Truth: Arizona is a no fault divorce state. Your spouse’s cheating will have no impact on child custody, or child support. Unless you have a valid prenuptial agreement with an infidelity clause, cheating will have no impact on property division or spousal maintenance, either.
MYTH: One Spouse Can Deny Another Spouse a Divorce.
Divorce Truth: While it makes things easier, the spouses don’t have to agree to a divorce. Either spouse may unilaterally file a divorce petition, and serve the other spouse The spouse will have 20 days to file their response if they live in Arizona, and 30 days if they live out of state. If the respondent spouse fails to respond to the petition, the petitioner spouse will be granted a divorce in all of the terms they requested in their petition. This is referred to as a “default divorce.” If the respondent spouse does appear in court, litigation will center on matters like child custody and property division, not proving whether or not they should be granted a divorce.
MYTH: The Children Get to Choose Which Parent They Want to Live With
Divorce Truth: A child’s opinion may be taken into account in custody matters once they reach a certain age, usually around 12. The child’s maturity level, intelligence, and other factors will affect the weight the child’s opinion has. Even when the child’s opinion is taken into consideration, it is only one of a variety of factors the judge will examine when determining custody. Others include the parents’ living situations, new partners and children, schedule compatibility, any special needs of the child, any physical or mental health conditions in either parent, the child’s adjustment to new environments, and if either parent has a past of interfering with the other parent’s parenting time.
MYTH: A Mother usually gets the children when spouses are divorcing.
Divorce Truth: This is an assumption of the past. Courts have shifted their attitudes, and now assume that it is usually in the child’s best interest to spend equal time with each parent. Many of our clients are fathers with full custody due to the mothers’ struggles with drugs, alcohol, and mental health issues.
MYTH: If I Keep the House in only my name during the marriage, this will assure I will get it.
Divorce Truth: It doesn’t matter whose name the house is in- mortgage payments and other contributions to the house during the marriage are community property. Any equity gained during the marriage will be split between the spouses, with one spouse being credited for premarital contributions, if applicable. The court may award the house to the custodial parent in the interest of maintaining normalcy for minor children, and award the other spouse a higher share in assets like vehicles, investment accounts, and vacation properties.
MYTH: An engagement ring is marital property and will be split if divorcing.
Divorce Truth: Gifts and inheritance remain the separate property of the receiving spouse, regardless of if it was received during marriage. An engagement ring is treated as a gift from the husband, and is not included in the process of property division.
MYTH: Alimony is always awarded in a divorce.
Divorce Truth: Alimony is decided based on a variety of factors, like each spouse’s income and earning potential, the couple’s standard of living during the marriage, and if one spouse supported the other spouse’s career and education at the expense of their own. Many people assume that the wife is always awarded alimony, but it is very possible that neither spouse is awarded alimony, or the wife is ordered to pay alimony to her husband.
MYTH: If I am not seeing my children, it is probably best to sign over my rights.
Divorce Truth: While this will relieve your obligation to pay child support, it will also permanently relinquish your right to time with your children. Termination of parental rights is most common when one parent remarries and the new spouse wishes to adopt the child, or when one parent struggles with substance abuse, mental health issues, and domestic violence. You should consult a family law attorney before signing over your parental rights so you understand the gravity of the agreement you are signing.
MYTH: Since the Divorce is the fault of my spouse, they will have to pay for my attorney.
Divorce Truth: The beginning assumption is that each spouse will be responsible for their own attorney’s fees. One spouse may be ordered to pay the other spouse’s attorney’s fees if certain circumstances are present. These include the financial situations of each spouse, and if one party engaged in misconduct like purposely delaying the case, hiding assets, and disobeying court orders. This applies to misconduct during the divorce, not during the marriage.
MYTH: The Debt from the marriage is in my spouse’s name, thus, I won’t have to pay it.
Divorce Truth: It doesn’t matter whose name the debt is in- in Arizona, if it was incurred during the marriage, it is community property. It will be split, along with the rest of your marital assets, during property division.
MYTH: My retirement account and IRA is in my name only, therefore, I won’t have to share with my spouse.
Divorce Truth: This isn’t true. If you were living in a community property state, your retirement account contributions during the marriage may be community property. If you made contributions to a 401K, IRA, or other retirement account during your marriage, you are probably going to need a family law attorney to help you determine how much of the account each spouse is entitled to. The account will be split per the terms of a QDRO, or a Qualified Domestic Relations Order.
MYTH: If I litigate and take my divorce to trial and prove everything is my spouse’s fault, I will get everything.
Divorce Truth: Arizona is a no fault divorce state, so property division isn’t decided based on the spouses’ conduct during the marriage. Absent a prenuptial or postnuptial agreement, or marital waste, all marital assets will be split evenly. Marital waste is when one spouse purposely or recklessly hemorrhages money in the period leading up to a divorce. A spouse who goes on shopping sprees, expensive vacations, drug and alcohol binges, and spends carelessly at the casino and on an extramarital affair, can be penalized during property division. The other spouse may be awarded more marital assets to credit that spouse for funds that were wasted.