Family Law: Divorce Myths

There are many common divorce myths that people have heard or assume about what happens in a divorce that are simply not true. Below is a list of some of these divorce myths:

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Myth 1:  Both parties can be represented by the same attorney.

This is completely false. Under the ethical rules, a lawyer cannot represent both sides in a family law matter. A lawyer can however, represent one side, and prepare the documents according to the agreement that the parties have reached. The other side can then review the documents and decide they are acceptable or have them reviewed by their own attorney (the preferred method to make sure things are fair and complete for them).

Myth 2:  All property is divided equally in a divorce.

The notion that all property is divided equally in Washington is inaccurate. The standard the court uses in the division of property is a fair and equitable division. This may favor one party over the other. Property must be identified as community or separate, and in most cases, the court will try to award separate property to the party to whom it belongs. The court will consider the economic circumstances of the parties (earning capacity, etc.) in deciding how to award property. The court is not allowed to consider “fault” in dividing property.

Myth 3:  A child at age ___ (13, 15?) can determine where they want to live.

Where a child lives is the parent’s decision, not the child’s. If the parent cannot decide, then the Court will decide. It is not appropriate to ask a child where they want to live, because the reality is they want to live with their mother and father as a family. Therefore, the child will usually tell their mother they want to live with her and their father that they want to live with him.

Myth 4:  If there is shared/equal residential time, then there is no child support.

Child support is calculated pursuant to the Child Support Schedules and Worksheets. It is based upon the comparative net incomes of the parties. Equal time does not necessarily mean no child support (however it could if the parties net incomes are equal). There is a provision for a deviation based upon substantial residential time. The court will consider the increase or decrease of expenses based upon the above normal residential time. Child support will not be set to zero simply based upon the agreement of the parties.

Myth 5:  A pension is not property and cannot be divided in a divorce.

When dividing assets, many people incorrectly assume that pensions are not assets or cannot be divided. Virtually every retirement plan or interest, can be valued and the marital component divided. For qualified plans, a Qualified Domestic Relations Order (QDRO) can be used to divide the interest, giving the non-employee spouse a pension of their own.