We all know a lot about how the law works because we watch TV. Right? Well, no—actually, it’s quite the opposite. We don’t know very much about the law, but most of us do know just enough to be truly dangerous. There are courtroom dramas right and left, and what most people really know is just enough to set them up for frustration and disappointment later on.
There are lots of misconceptions when it comes to family law cases. Family law is, in a lot of ways, very, very different from other types of law, which probably explains most of the craziest misconceptions. Probably, too, based on your exposure to TV, you’re most familiar with criminal law and personal injury law—neither of which are at all like family law.
If it’s starting to look like you’re going to go through a divorce or custody case in the near future, you definitely need to begin to gather as much information as possible. The more you know, the more accurate your expectations, and the more effectively you can begin to prepare yourself for what’s to come. In some ways, you may find out that things are worse than you thought—but I’m sure I know a couple Today, we’re going to talk about 6 of the most common misconceptions when it comes to family law.
Misconception #1: You can get an annulment because you were only married for a short time.
I can understand the appeal. You made a mistake, and you’d much rather make it seem as though it never happened than get a divorce. Maybe he lied. Maybe he turned out to be not such a nice guy after all. Maybe you rushed into things, and you didn’t really know each other beforehand. Regardless, you made a mistake. And you’re thinking that, because you weren’t married very long, you can just get it annulled.
I hate to break it to you, but that’s not how annulment works. In an otherwise valid marriage, the fact that you haven’t been married very long isn’t grounds to get an annulment.
So, how do you get an annulment? Well, it’s complicated, and it’ll take more room to explain than I have to dedicate to the topic today, but I’ll cover the basics here. (For more detailed information about annulment, click here.)
Basically, to get an annulment, you have to prove (1) that there was a defect in the marriage (like that it wasn’t performed by someone qualified to perform marriage ceremonies, that one or the other of you was too young, that one of you was already married, or some similar situation), (2) where one spouse withheld a critical piece of information (like that you had a prior career as a prostitute, that your husband fathered a child within ten months of your marriage, or that your spouse didn’t tell you that he was impotent), or (3) where there was fraud. Length of marriage has nothing to do with it!
Misconception #2: Moms always get custody.
I’ve also heard over and over again that moms can’t lose custody.
Custody has changed a lot over the years. I think it’s probably safe to say that, back in the day, there was a presumption that moms were better or more appropriate caregivers for the kids, but all that is changing. These days, custody is based on a complex analysis of the best interests of the child factors. Most states have some version of the best interests of the child factors, and, in Virginia, there are ten which affect how courts determine custody.
1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
2. The age and physical and mental condition of each parent;
3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;
4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;
5. The role that each parent has played and will play in the future, in the upbringing and care of the child;
6. The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;
9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and
10. Such other factors as the court deems necessary and proper to the determination.
These days, custody can go either way. It’s probably fair to say that, in most cases, custody isn’t an issue, and the parents decide themselves about how it will be divided or shared between them. In other cases, where the parents can’t agree, the case goes to court and a judge decides. When judges decide, the trend is towards shared custody.
Misconception #3: He cheated. I’m getting a divorce based on adultery.
Just because he cheated (or, on the other hand, you cheated) does not mean you will get divorced based on adultery. It certainly doesn’t mean that you have to, either!
When it comes to divorce, you have a couple options. You can always choose a no fault divorce, which means that, whether you have fault based grounds or not, you don’t have to use them to move your divorce forward. A fault based divorce, on the other hand, is a little more difficult, because it requires that you provide evidentiary proof to show that your fault based grounds exist—so you’ll have to go to court and put on evidence in front of a judge, and convince him that fault exists. That’s tricky, and it can also be pretty expensive.
The fact that he has admitted that he committed the adultery isn’t enough; you have to actually provide evidence, witnesses, and/or exhibits in court, and prove to the satisfaction of a judge that what you’re alleging is true.
Just because you have fault based grounds doesn’t mean you have to use them. Keep in mind that the cheaper, easier, more time efficient way is often to move forward without using your grounds. Not only that, but using fault based grounds rarely results in a disproportionate award of assets—meaning that the juice probably isn’t worth the squeeze anyway. It’s a good idea, if you’re wondering about your unique circumstances, to talk to an attorney about your individual case.
Misconception #4: If my case is bad/hard/sad enough and I can’t pay for an attorney, I can get one to represent me pro bono.
No. I’m sorry, but no. I can’t tell you how often I hear this. You’re right in thinking that many attorneys provide pro bono legal services. Unfortunately, though, very few (if any!) attorneys really take entire cases pro bono.
Every attorney handles their responsibility to provide free (or low cost) legal services differently. At our law firm, we volunteer our time to teach at our divorce and custody seminars. (Though there is a fee to attend, the fee helps to offset our costs renting the room, printing the materials, and keeping the lights on.)
For more information about Second Saturday, our divorce seminar, click here. For more information about Custody Bootcamp for Moms, our custody seminar, click here. For more information about pro bono legal services, click here.
Misconception #5: Oh? I can’t get one pro bono? Well, then, I’ll just get my attorney appointed, since I can’t pay for one.
It doesn’t work that way, either, I’m afraid. Attorneys don’t get appointed in family law cases. The way our laws work, attorneys only get appointed in criminal cases. It may not seem fair to you, but the law is designed to protect people from having their liberty unfairly taken from them. In a case where a person is charged with a crime, an attorney can be appointed. Divorce is viewed differently, and you’re not eligible to have an attorney appointed because you can’t afford to hire your own.
Misconception #6: An attorney can take my case for free, and then collect out of my settlement later on.
You’ve probably seen the commercials. “No fee unless we get money for you!” That’s describing what we call a contingent fee arrangement, and it’s most commonly used in personal injury cases. If you were in a car accident, for example, you can hire an attorney and he’ll do all the work on your case with no money from you up front. If the attorney loses your case, he doesn’t recover anything, either. If he wins, though, he takes a percentage (usually thirty or forty percent) from your award.
In family law, we can’t do that. According to our ethical rules, we aren’t allowed to take cases on a contingent basis. It’s not like we don’t want to; we just don’t want to get disbarred.
Almost all family law cases are taken on retainers, and attorneys then bill against them based on their hourly rates.
Family law is unique in a lot of ways, and things don’t work the same as they do in other areas of law. It’s not better or worse, it’s just different. The more you know about how things work, the better you can begin to prepare for your upcoming divorce or custody case.
Have more questions? Feel free to browse our library; it’s chock full of tons of information about all these topics and more. Want to ask an attorney in person? Check out our divorce and custody seminars. They’re all taught by one of our licensed, experienced Virginia divorce and custody attorneys. Need to schedule an appointment? Give our office a call at (757) 425-5200.