Top 5 Divorce and Custody Myths

June 19, 2024

By: Robert D. Weinberg

Whether it is from TV shows, movies, or stories from friends, people who are unacquainted with the divorce and custody process often come to initial consultations with attorneys with certain expectations that are, well, based on myths. Here are the most common myths that have made the top five list:

  1. I didn’t work during the marriage so I will receive lifetime alimony: Alimony is available in Pennsylvania, but it is what is known as a “secondary remedy”—secondary to asset distribution. This means that the court attempts to fix financial disparities with assets first—potentially by “skewing” the distribution percentage (giving one party more than 50% of the estate)—which leads to the next myth.
  2. Assets are always divided 50/50: Pennsylvania is an equitable distribution state, not an equal distribution state. That means that courts will look at several factors to determine what is fair in an effort to promote “economic justice.” Those factors include contributions to the marriage (economic and non-economic), the relative financial status of the parties, sources of current and future income, and other similar considerations. It may well be that a 50/50 division of assets is fair; but the court can award one party a higher percentage of the estate if the circumstances warrant.
  3. The party filing for divorce pays the other person’s fees: Typically, each party pays for their own legal fees. There are several exceptions to this general rule, such as when one party acts in bad faith or there is an extreme disparity in financial circumstances. But those exceptions are somewhat rare.
  4. I had an affair so I deserve less/ my spouse had an affair so I deserve more: Although the reasons why the marriage ended are a factor in an alimony case, the “moral” issues leading to divorce increasingly do not move the needle one way or the other. Ultimately, divorces are essentially like winding down businesses, and courts are chiefly concerned with making sure both parties are treated fairly, regardless of “fault,” even when one party had an affair. The “story” of the marriage is always important, but unless one party spent a lot of money on a paramour, affairs will not have a major impact on the financial outcome.
  5. I was the primary caretaker of the kids so I get sole custody: Courts are charged with making sure the best interests of children in separating families are protected. Without any discredit to parents who were primary caretakers, the main goal in every custody case is for the children to have happy, healthy relationships with both parents. Often, if both parents can provide for the children’s basic needs and are otherwise “good” parents (not necessarily “excellent”), then a shared custody arrangement will be the likely outcome in a custody case. Another thing to remember: courts see the worst case scenarios every day (criminals, drug addicts, abusers); so if the opposing party can get the kids to and from school, dinner made, homework done, etc., they are probably good enough to share custody.

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