5 Myths of Divorce Litigation

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 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, they should not receive significant parenting time with them once separated. In South Carolina, there are many factors that affect the parenting schedule that is most appropriate. We have seen a trend in recent years toward shared custody or a 50/50 split of parenting time with the children, 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 that absent, unfit, or deadbeat parents start out with shared or 50/50 custody. The temporary hearing will be the first 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 if their spouse cheated on them, they can “take them to the cleaners” during a divorce.  Adultery can be a bar to alimony in South Carolina, which is a huge bonus 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 less weight in determining the division of this property.  For example, if your spouse spent thousands on weekend trips with their paramour and buying gifts for their paramour, 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 a significant effect on the final division of the assets.  Essentially, only the most extreme cases of misconduct will have a major effect on 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/he used the money that I earned to purchase it, thus it is technically mine!”  While that logic might be easily understood, unfortunately, in South Carolina, most property acquired during the marriage is considered “marital property,” with some limited exceptions.  When dividing marital property, South Carolina follows a property model called “equitable distribution.” This concept allows the judge to divide the property as fairly as possible between the spouses.  For example, if one spouse is the sole breadwinner 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 family 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), where the court will try to get as close to a 50/50 distribution as it 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 breakdown of the marriage, and their financial contributions to the marriage, just to name a few. Because many marriages are not 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 reviewing the previous four myths and misperceptions should give you a good idea of the many different ideas about 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 lives. 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 past experience to help guide them through the process.  Knowledgeable family law attorneys have the experience that clients need when facing these situations.  Ben Stevens and his team at Offit Kurman have provided exceptional legal counsel and support to families throughout South Carolina for over twenty-five years, handling divorce, separation, child custody, child support, visitation and other family law matters. We are well-equipped to handle all divorce and family law matters, no matter the circumstances.

If you or someone you know is facing a divorce or child custody case, contact our office at (864) 598-9172 or SCFamilyLaw@offitkurman.com to schedule an initial consultation.