People usually talk to friends or coworkers about divorce before they come talk to an attorney. Invariably those friends and coworkers share stories or statements about the law that are not true.
People also search Google for answers to questions about their divorce. Here is some free advice – do not believe everything that you read on the internet.
This post provides a list of the top 5 myths I hear from clients and the truth about those topics.
Myth #1. My 12 Year Old Child Can Decide Which Parent To Live With (and will pick me)
False. This is probably the single most common myth concerning child custody in divorce.
The truth is that you can ask a judge to interview a child over the age of 12 to determine what the child’s wishes are regarding custody.
The judge will listen and take the child’s wishes into consideration.
However, the judge is not bound by the child’s expressed desire. The judge will still make the ultimate decision on what is in the child’s best interests regarding custody.
The truth is that there are very few 12 year old children capable of carefully evaluating which parent provides the best environment for the child.
Myth #2. My Spouse Cannot Get My Retirement Account
False. All community property is subject to division and retirement accounts can be community property if contributions were made to the account during the marriage.
Retirement accounts are an exception to the Inception of Title rule in Texas. Ordinarily property is characterized as community or separate property based upon whether it was acquired prior to or during the marriage. But retirement accounts may be community property even if the account was opened prior to the marriage.
Another related myth is that retirement accounts cannot be divided in a divorce without significant taxes and penalties. That is also false.
Depending on the type of account, there are various legal mechanisms for dividing retirement accounts without causing a taxable event or incurring penalties.
This of course assumes you divide the account correctly.
Dividing a retirement account incorrectly is on my list of 10 Common Financial Mistakes In Divorce.
Myth #3. Judges Always Favor The Mother
This is no longer the case in most courts.
Every Judge has his or her own personal views on parental relationships that the Judge brings to the bench. This is one of the uncertainties that affects the result of every trial.
However, there has been a significant shift in views on parenting over the past couple of decades. It is more common to see a judge that views the parents equally than a judge that favors the mother.
Indeed, 50/50 possession schedules are becoming more and more common.
Myth #4. Community Debt
Texas is a community property state. This means that there is a presumption everything you own is community property that is subject to division in divorce.
The common myth is that people assume this community property rule translates to debt as well.
It does not.
There is no such thing as community debt. Each spouse is personally liable for the debt that he or she incurs with one exception.
The sole exception is for “necessities.” If a debt was incurred by one spouse to provide necessities for the family, then that debt is subject to division in divorce.
Myth #5. 50/50 Custody Means I Do Not Have To Pay Child Support
False – in most cases. Possession of the children is separate from a duty to pay child support. The only time this statement might be true is if the spouses make the same amount of money.
While the amount of child support will likely differ from the statutory guidelines under a 50/50 possession schedule, the higher earning spouse will still end up paying child support.
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