Visiting an attorney to get your estate plan done is one New Year's resolution that you should definitely keep. None of us knows whether or when we may find ourselves seriously injured or sick.
Here are some common misconceptions parties in family law frequently bring with them.
1. I can quit my job to avoid paying Spousal Support.
This is absolutely not the case, and I am extra careful when advising clients of this fact should they believe this misconception true. How can the Court order you to pay Spousal Support because you made more money than your ex when you do not in fact have that income anymore because you will have quit (save for pensions, 401ks, etc.)? The reason is that domestic relations law does not want to incentivize up and quitting your job solely for the purposes of evading spousal support. Whether or not this is good policy does not really matter in the long run, it is the law, and courts will frequently find persons in such situations willfully un or under employed, and will calculate spousal support on what you would likely be making had you not quit.
A related misconception is that eligibility to retire does not in and of itself get you off the hook. A court could still determine that you would have continued working had you not been facing a spousal support obligation. Should you be in the middle of a divorce, be considering a divorce, or have been divorced for a time and wish to retire, and therefore want to modify your current spousal support order, talk to your attorney before you act. The case law in this area is very complicated and frequently changing, and a mistake could be VERY expensive.
2. Joint Custody and 50/50 Parenting Time means I will not have to Pay Child Support
This is also untrue. When calculating child support, the Court or state agency will combine the gross income (or potential income, should the Court rule it necessary) of both parties minus certain allowable expenses, and calculate the amount of support the parents combined are obligated to spend on the child each month based on guidelines created by the State of Ohio. They then determine the percentage of that support paid for by each parent. Applying each percentage to the combined totals, that is the support obligation of each parent.
If the parents have a 50/50 parenting time arrangement there may be grounds for deviation, depending on the incomes of each party and any other factors which relate to the best interests of the child. This is why it is so risky to represent yourself in a divorce or dissolution proceeding. A local attorney will know how each judge, magistrate, and state agency is likely to rule on child support, they will know when and under what circumstances judges tend to deviate from the standard child support worksheet, and will likely be able come up with an arrangement that is fair and possibly better for both sides.
3. Shared Parenting = Equal Parenting Time
Child custody is all about what is in the best interests of the kids. In Ohio, a shared parenting plan means that both parents have legal custody of the children, meaning both have the authority to make decisions regarding education, out of school activities, medical treatments, etc. That does not necessarily mean that each parent is going to get exactly 50% parenting time. The Court will determine what is in the best interests of the child, and this has much to do with the individual needs, age, and activities of the child(ren) at issue. There are a myriad of examples of this. One parent goes to work really early in the morning on certain days, so it makes since for the other parent to have the child on those days to get them ready for school. One parent works close to the child’s school, so it makes since for them to have parenting time on X evening because they can take the kid to basketball practice and take them home after. The realities of life make exact 50/50 parenting time arrangements frequently not in the best interests of the child(ren). I advise my clients to focus on the parenting time that they believe is most important for them to have with their children. Frequently this ends up being more or less than 50% of the days/hours in a year, but the ultimate agreement is better for everyone, especially their children.
4. Wife gets the Kids
Saved the best for last. This is the longest enduring myth about domestic relations out there. The law is gender neutral, for the most part, when it comes to who is granted custody of minor children in an Ohio divorce. Ohio courts look primarily to the best interests of the child(ren) at issue. To determine this, the courts look at a number of factors, such as the primary caregiver before divorce/dissolution was filed, the ability of each spouse to care for the children (that means skills as well has financial and physical capacity), any past spousal or child abuse, etc. I said “for the most part” above because some caretaking options many families choose, such as breast feeding, are inherently associated with the mother, and many families informally designate the mother as primary caregiver in the infant and toddler years. Then again, this is 2013. Traditional gender roles in parenting have changed and are changing. That does not guarantee your judge or magistrate will see it that way, but the presumption of the wife as the primary caregiver is gone from Ohio law.