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Common Misconceptions About Divorce

Curiale Hostnik PLLC Feb. 23, 2021

If you are considering divorce or are already in the middle of the process, you have likely had friends and family offer opinions and advice. Unless they are a family law attorney, it is wise to take their advice with a grain of salt. There are many misconceptions about divorce. You should consult with a knowledgeable attorney to find out what is true and what is not.

At Curiale Hostnik PLLC, we represent family law clients in Tacoma and Pierce County, Washington as they consider divorce or navigate the process. We are dedicated to providing sound, experienced legal advice free from common misconceptions about divorce. Here, we want to set six of the most common misconceptions straight.

1. If the other parent does not pay child support, I can withhold visitation.

Child support and visitation, referred to collectively as “parenting plans” in Washington, are two separate issues. Both parents are legally obligated to provide financial support for their children, but the noncustodial parent is not “paying” to see their children. Visitation is the child’s right to have a relationship with both parents. If you attempt to violate the court-approved parenting plan by not allowing the other parent to spend time with the child, and you return to family court, the judge will not appreciate your attempt to punish the noncustodial parent at your child’s expense.

2. The mother is always awarded primary custody of the children.

The yardstick for the court in custody matters is always what is in the best interest of the children. For a very long time, because moms tended to stay at home and dads went to work outside the home, the mother was typically awarded primary physical custody of the children. Now that both parents are employed in many marriages, the court tends to award more time in the parenting plan to the parent who was the primary caregiver to children during the marriage.

3. The children get to choose who they live with.

The court — not the children — decides which parent receives primary custody. The court will consider the wishes of children who are old enough and have the intelligence and maturity to express an opinion, but judges weigh numerous other factors when awarding custody. In Washington, the preferences of older children do tend to carry more weight with the court. In general, judges will factor more heavily into their deliberations the preference of children aged 12 and older.

4. If adultery was involved, the other spouse “gets everything.”

Washington is a “no-fault” divorce state. This means no specific reason for the divorce is needed. One spouse merely needs to petition for divorce on the grounds that the marriage is irretrievably broken. Because of this no-fault rule, the court does not consider adultery in property division, child custody and support, or spousal maintenance (alimony). The only exception could be if the wronged spouse can demonstrate that the cheating spouse spent a significant amount of marital assets to engage in the adulterous relationship.

5. If property is in the name of only one spouse, that spouse gets to keep it.

Washington is a community property state, so anything acquired during the marriage by either spouse — whether both names are on a title or not — is to be divided equitably between the two in divorce. Separate property is generally anything each spouse owned prior to the marriage. If the couple lived together for a time before they married, some property could be considered community property. If couples shared payments (on mortgages or auto loans, for example) or if they commingled funds in joint bank accounts, some separate property might be considered community property in the divorce.

6. It’s possible for one of the spouses to deny the divorce.

In Washington, your spouse’s consent is not needed to get a divorce. The filing spouse has to notify the other party by serving them with the divorce petition, but neither party can prevent the divorce from happening. The filing spouse can ask the court to enter a default order if the other spouse fails to respond to the petition within the 90-day response period. A default order allows the filing spouse to proceed with obtaining a divorce decree from the court.

Work with an Experienced Washington Divorce Attorney

Most divorces are complicated. The more assets, liabilities, and the need for child custody agreements make them even more complex. No matter what type of family law issue you may be facing, the place to start is always knowing the facts. An experienced family law attorney can help.

At Curiale Hostnik PLLC, we help clients in Tacoma, Puyallup, Gig Harbor, University Place, or Pierce County, Washington get the facts about divorce. We believe that knowing what is true and what is not is the first step in facing the divorce process with confidence.

If you have questions about a family law situation, we have answers. Call our office now to schedule a consultation.