Common Myths About Family Law

New clients often ask the same questions and have the same misunderstandings about family law and divorce. Many people rely on misinformation from online research or friends. An attorney who practices exclusively in family law is the only reliable source of information regarding Florida family law, your rights and obligations under the law.

Myth: It is advantageous to be the spouse who initiates the divorce.

As the petitioning spouse, you decide when to start the case. Otherwise, the spouse who files the petition receives no special treatment from the court and has no special rights over the other party.

Myth: My spouse will be punished for his or her cheating.

Generally, no. Florida is a no-fault state. Therefore, the court will disregard wrongdoing unless it affects the best interests of the children or results in the waste of marital assets or marital income.

Myth: If I move out of the house, that is considered abandonment and I lose my property interests in our home.

No, the court does not consider who moves out of the house first when determining who receives the home or how the proceeds from the sale of the home will be divided. Do not stay in an unsafe or toxic environment under the mistaken belief that you are required to remain in the home.

Myth: At a certain age, your child can tell the judge what he or she wants/decides the schedule.

No. There is no rule that a child over a certain age may testify in court. This is up to each judge and is usually only granted for good cause. Instead of bringing the child to court, a judge may appoint a Guardian ad Litem for the child, may order a Parenting Evaluator to investigate the parents and child, or may involve the Department of Children and Families to investigate ongoing matters. When a child does testify, the judge will speak with the child alone in chamber and no parent is present. Likewise, there is no rule that a child over a certain age may determine his or her living arrangements. The timesharing schedule (custody) is based on the child’s best interests. Florida law identifies 20 factors to be considered by the court in determining custody. This includes the child’s preference, but usually only children of advanced age and maturity.

Myth: Any presumption of a timesharing (custody) arrangement, such as “The mother always gets custody.”

No. Although this may have been true many years ago, Florida now determines custody by an analysis of the best interest factors. The court considers all factors together, without a presumption in favor of either parent.

Myth: All of our property will be divided equally when we divorce.

Not quite. In Florida, property is divided “equitably,” which means fair under all the circumstances. Some property may not be subject to division, such as property owned by one spouse prior to the marriage or property received as inheritance. Property division is nuanced, so if you have concerns about whether property is marital or separate, you need to speak to an attorney.

Myth: My spouse has no claim to items titled in my name, such as bank accounts or vehicles.

Unless there is a prenuptial agreement, the answer is usually no. Property acquired during the marriage is typically marital property no matter how it is titled, meaning your spouse has a joint interest in the property.

Myth: I need the most aggressive attorney to win my case.

Family law attorneys do not need to be combative to serve their clients. In fact, inflammatory attorneys often increase conflict which increases your costs. A good attorney will spend time helping you identify your goals and will help move your family to a new stage rather than intensify the conflict.

Myth: I don’t need an attorney.

If you have anything you value, such as property or children, you should hire an attorney to advise you how best to protect your valuables. An experienced attorney will identify common problems that could arise after the divorce, and help you address these issues on the front end with a comprehensive resolution.

Myth: My divorce outcome will be the same as so-and-so’s divorce.

No. Every case and every person is different. Do not rely on information you receive from friends, family, and certainly not the internet for legal advice. Trust the advice of the professional you hired.

Myth: The Judge will be fair and give you everything you have asked for.

No. Going to court is stressful, expensive, and unpredictable. Yes, the judge will decide the issues, but remember the judge makes this decision after hearing only a fraction of your story. Most people do not walk away feeling vindicated or even satisfied.

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Rachel Borntreger practices exclusively in the area of family law. To learn more about the law as it applies to your case, contact our office at (850) 694-1411 to schedule your initial consultation.

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