If you are going through a divorce or even just considering one, chances are you’ve heard the horror stories.
“She took him for everything he had!”
“He walked away with the house, the kids, even the dog!”
These stories are enough to strike fear into the heart of anyone considering a divorce. But how true are they?
Let’s separate fact from fiction and break down one of the more enduring divorce myths: Can your spouse really take everything in your divorce?
The Myth: One Spouse Can “Take it All” in a Divorce
Social media, TV dramas, spousal sour grapes – these have perpetuated myths that a vengeful or more financially savvy spouse can strip the other of all their assets and even the couple’s children. It’s an understandable fear. After all, divorce is an emotional time, and the stakes are high. But legally, this kind of total wipeout is rarely, if ever, how things actually play out in a divorce.
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The Truth: Divorce Laws Favor Fairness, Not Revenge
The legal system doesn’t deal in revenge. Its focus is fairness and equity in a divorce scenario. The goal is never to punish one spouse and reward the other but to divide assets and custody fairly according to that state’s laws.
If My Name is On the Title, Isn’t it Mine?
It’s important to understand marital property, separate property, and how the courts divide it in a divorce.
Marital property includes any assets and debt you and your spouse acquired during your marriage. Anything acquired during the marriage is marital property and subject to fair division, no matter whose name is on the title. Separate property generally includes assets you or your spouse owned before your marriage or received as a gift, inheritance, or legal settlement during the marriage. If you owned assets before you were married, your spouse can’t take these from you unless they have become co-mingled or legally converted into marital property while you were married.
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Does That Mean Everything is Divided Equally?
Depending on where you are filing for divorce, the court will either follow equitable distribution or community property rules.
In equitable distribution states (most states in the United States), the court considers a variety of factors when making fair property division decisions, such as the length of the marriage, each spouse’s contributions to the marriage, each party’s income and other factors when deciding how to divide assets. In community property states, marital assets are owned by both parties equally. However, courts still often consider some of the same factors that equitable distribution states consider when ensuring property is divided fairly.
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But Isn’t the Breadwinner Entitled to More?
A common fear, especially for stay-at-home parents or lower-earning spouses, is that the person who made the most money during the marriage will walk away with the lion’s share of the assets – the house, the savings, the retirement accounts, and even the kids. The logic? They earned it, so they get to keep it.
But that’s not how the law sees it. Courts recognize that spouses contribute to marriages in different ways. Earning an income is only one kind of contribution. Taking care of the children, managing the household, supporting the other spouse through school or career advancements, or sacrificing their own personal opportunities for the family’s benefit are all considered marital contributions. In fact, the higher-earning spouse may be required to pay spousal support to help the other spouse build financial independence after the divorce. This is especially common when one spouse leaves the workforce to raise children or manage the home and needs time and support to become financially independent.
What if One Spouse Cheated on the Other? Can’t That Spouse Lose Everything?
No doubt, infidelity is a hurtful and emotionally damaging betrayal. Many assume that if their spouse cheated, they’ll be rewarded in court with everything – the house, the money, the kids. After all, shouldn’t the person who broke the marriage pay the price?
The reality? Divorce court isn’t about punishment. While adultery is often the spark that ignites a divorce, it doesn’t automatically entitle the other spouse to everything. No-fault divorce laws exist in every state, meaning spouses don’t have to use wrongdoing to file for divorce. Even in states that recognize adultery as fault-based grounds for divorce, the act of adultery itself plays a limited role unless financial misconduct is involved, such as the cheating spouse using significant marital funds to support their affair. In such cases, the court may compensate the other spouse accordingly during property division or spousal support decisions.
What About the Kids? Can One Spouse “Take Them Away” From the Other?
One of the most painful threats a parent can hear during a divorce is, “I’m going to take the kids.” But custody decisions aren’t made based on bluster and threats. They are based on what is best for the child.
Courts weigh many factors when making custody decisions, including each parent’s relationship with the child, emotional and physical stability, and the ability to co-parent cooperatively. Most states prefer joint custody arrangements unless there is a compelling reason – such as abuse, neglect, or instability – to award sole custody to one parent.
It’s important to keep in mind that threatening to take the children is not only emotionally harmful but also not a good legal strategy. In fact, threats like these aren’t taken lightly by the court. Family courts frown on attempts to alienate the other parent, so this behavior can actually hurt the threatening parent’s case.
The Myths vs. The Reality
There are many myths surrounding divorce, but the reality is that family courts are focused on fairness under the law, not winning and losing. Divorce, if done with the help of an experienced legal representative, is about navigating a very difficult transition with your rights, dignity, and financial security intact.
If you are facing a divorce and worried about protecting what matters to you, you don’t have to face it alone. At Melone Hatley, P.C., we pride ourselves on providing strategically tailored guidance to ensure your best possible outcome. Contact us through our website or by phone at (800) 479 – 8124 to schedule a consultation with one of our client services coordinators today.
Schedule a call with one of our client services coordinators today.
