Boston Divorce Lawyer – Boston Divorce & Family Law Attorney Blog

In Part I of this series, I discussed a number of misconceptions about Family Law.  Here, the second chapter:  Family Law Myths Exposed, Part II

Myth: You should tell the judge about every time the opposing party has wronged you.

Truth: Judges are busy people with full schedules.  One of the things they appreciate is brevity.  Some facts are relevant, others are not.  Chances are, if you recall every detail of every argument you’ve had with your ex-spouse or partner for the past three years, you’re doing yourself a disservice.   This is one of the many reasons why having representation in the Probate and Family Courts is so important.  Attorneys understand the law, so that they can present the information the judge needs to make a decision without presenting information that might be harmful to your case, or simply irrelevant.

Myth: When a couple divorces, each person automatically gets half.

Truth: When it comes to who gets what, nothing is automatic in a divorce.  If the decision is left up to the court (see next myth), the judge will consider a variety of factors in divvying up property.  What matters?  The list is long but includes who owned what before and during the marriage and how those things were acquired.  If one person stayed home to take care of the children while the other was the sole breadwinner, the stay-at-home parent might be awarded more than if he or she worked and earned at a similar level.

Myth: It’s best to just let the judge decide.

Truth: There are very few occasions when it is best to just let the judge decide.  Usually, people say this for one of two reasons:  they’re uncertain of what they want and how to ask for it, or; they’re so certain that they’re in the right that they’re unwilling to compromise.   Yet another reason why the assistance of an attorney can be crucial when it comes to Family Law matters.  An Attorney can let you know what expectations are reasonable when it comes to Family Law, and can express what you want in a way that makes legal sense.  More importantly, an attorney can let you know what expectations are unreasonable when it comes to Family Law, so that you don’t end up with an order you hate instead of an agreement you could have lived with.

There are very few times when the Family Court would be unwilling to accept an agreement the parties have come up with themselves.  As long as it’s fair, and the parties have touched upon all the relevant issues, a Judge is likely to approve an agreement.  Isn’t it better for a family to make decisions for itself, rather than asking a relative stranger to do so?

Anyone who’s had a matter in the Probate and Family Court in Massachusetts knows that you spend a lot of time waiting around the courthouse to be heard.  Being a Divorce Attorney, I often find myself sitting in the hallways of the courthouse waiting.  In these hours of waiting, I often hear unrepresented parties discussing their legal matters and I’ve come to realize that there are a lot of misconceptions when it comes to what the law actually is.  I’ve decided it’s time to address these myths, and bring some clarity.  I give you: Family Law Myths Exposed: Part I.

Myth: Having Joint Legal Custody means that each parent is financially responsible for half of everything the child needs.

Truth: Whether or not a parent has legal custody of a child has nothing to do with whether or not he or she has to pay support, or how much that parent will have to pay.  Legal custody dictates who gets to make major decisions for your child, like where your child will attend school.  Child Support is based on the gross incomes of both parents, and who has physical custody of the child.  Support is paid because both parents have a responsibility to contribute to their child’s financial well-being, but the court isn’t going to order a parent to pay half if he or she can’t afford that.

Further, both parents may not be responsible for all of a child’s expenses.  Child Support is about covering the necessities in a lump sum.  Things like food, clothing, rent or mortgage payments.  There are plenty of things that aren’t considered necessary expenses, or that are covered by orders separate from a Child Support order.  There may be separate provisions for healthcare expenses, or extracurricular activities.  Often times, when it comes to discretionary spending that the parents don’t agree on (for instance, one parent feels it appropriate to buy the child a brand new car and the other parent doesn’t agree), the parent who disagrees may not be responsible for any portion of the purchase.

Myth: Whether or not a parent pays Child Support determines whether or not he or she has a right to see his or her child.

Truth: The obligation to support your child and the right to spend time with your child are totally separate issues.  A parent who puts his or her child at risk may be required to pay support, even though he or she is not allowed to see the child.  Likewise, a parent who cannot pay support may have an order allowing him or her frequent visits.   In the Probate and Family Courts, judges are looking at what is in the best interest of the child.  Most of the time, this is the child having both of his or her parents in his or her life, making financial contributions at a level they can afford.

Myth: You have a right as a parent to see your child.

Truth: To a certain extent, this is true, but not the way most parents seem to think about it.  As mentioned above, the Probate and Family Court is really protecting the rights of your child; your child’s right to be safe, happy, and healthy—emotionally, mentally, and physically.  Most of the time, this interest is best served when everyone who loves your child gets to play a part in his or her life.  This is why a court will order a visitation schedule.  Not because you as a parent have a right to that time with your child, but because your child has a right to that time with you.

In my earlier posts on paternity, I discussed the importance of Genetic Marker Testing, even where both parents are certain about paternity.  Obviously, in such a situation, asking for a test can be an uncomfortable situation.  The only thing that could be more uncomfortable is expressing doubts years later, when paternity can’t be rescinded, and your child is old enough to remember the experience.  In other words, having a Genetic Marker Test done early can save everyone involved a lot of heartache later.

Genetic Marker Testing is provided by the Department of Revenue for little or no cost (based on the parties’ needs.)  You can fill out an application for services at their website, or file a motion in the Family and Probate Court for an order to have the testing done.  Once this testing is done, both parents can voluntarily acknowledge paternity without any doubt, and feel secure in knowing they are making the right decision.

You’ve either voluntary acknowledged your paternity or you have been adjudged to be the parent of a child.  What now?  Being legally recognized as a child’s parent comes with a number of rights and responsibilities.  Key to all of these is one idea:  the best interest of your child.  All children have the same rights when it comes to their parents, regardless of his or her parents’ marital status at the time he or she was born.

Being legally recognized as a child’s parent means that you can now seek visitation with and/or custody of your child.  Until the court enters an order to the contrary, when parents are unwed, the mother has sole physical and legal custody of the child by default.   (If you’re unfamiliar with the difference between physical and legal custody, see my earlier post.)  While a court may be hesitant to change this arrangement (as stability is typically in the best interest of a child), establishing some sort of visitation order shouldn’t be too difficult.  Having a meaningful relationship with both parents benefits a child, and if both parents can get along well enough to work out the best schedule for everybody involved, even better!  Visitation orders can range from a simple statement that the parents will work out something that works to incredibly detailed documents covering a host of provisions, like what time and where visits will take place and who will transport the child.

Along with the right to spend time with your child, being legally recognized as a child’s parent comes with the responsibility of providing your child with financial support.  If you do not have physical custody of your child, the court will enter an order of support outlining the amount of child support and how it will be paid (how often, whether it will be paid directly to the other party or through the Department of revenue, etc.).

With these rights and responsibilities now at your feet, it’s important to at least consult with an attorney so that you can fully understand their scope.