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The top 4 Divorce Myths

This article appeared in the May 2010 edition of Profile magazine.

In my job as a divorce lawyer, I meet clients on a daily basis who come to see me with pre-conceived ideas about how the divorce process works, particularly in terms of who is ‘entitled’ to what in a financial settlement and also in relation to children.

Here I have listed the 4 divorce myths that I hear most often, together with a brief explanation of what the reality is.

1. “The woman always gets the kids.”

There is no gender bias in English family law and therefore no automatic assumption that the children will reside with the mother. Child residence is determined by a number of factors including whether one party has historically undertaken more of the day to day care than the other, the wishes and feelings of the children themselves (considered in light of their age and understanding), the likely impact of any change and who is better placed to be able to meet the ongoing future needs of the children.

It is of overriding importance for any children involved to have a stable and safe place to live. In most cases the children will live primarily with one parent and the other will have ‘contact’ at regular, pre-arranged intervals. Sometimes, shared residence is the most appropriate. Who they will live with, when and where will be negotiated with the help of your solicitor.

2. “My partner has committed adultery and the marriage breakdown is their fault, so I will get more in the divorce settlement.”

As a general rule, the Courts do not take behaviour into account unless the behaviour is extreme. They are not in the business of apportioning blame or imposing punitive penalties, but rather in finding the best possible outcome for all parties going forward.

3. “I’m not entitled to half his business.”

In determining a financial settlemdivorce mythsent, particularly in longer marriages, the courts will start from the basis of a 50/50 split. Where a business is involved, it will depend on the nature of that business and whether it has any marketable value, as to whether it can be classed as an asset of the marriage. For example, a self employed painter & decorator has a business which is based solely on that person doing the job, and the business has no intrinsic value above that person’s skills and equipment. For a business such as a sandwich shop, this could include business premises and goodwill which have a marketable value and therefore could be sold. In this case, a value would be placed on the business which would then be included in the financial pot of marriage assets. Rather than selling the business to achieve a settlement, the person involved in the business may retain it, but take a smaller share of the other assets, such as the family home, to offset this.

4. “He doesn’t pay child maintenance so why should he see the kids?”

Child contact is based on the rights of the child to maintain a relationship with both parents, not on the rights of the parent to see the child. In some cases, one parent will try to use child contact as a bargaining chip, for example, in cases of non-payment of maintenance. These are two very separate issues and contact with a child should never be influenced by or compromised whether or not maintenance payments are being made. There are separate ways of pursuing and enforcing child maintenance payments.

Each person’s circumstances are different and the outcome of a separation or divorce can vary depending on a number of factors. For personalised advice you should always consult an experienced family lawyer to safeguard your interests.

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