Family Law Myths Exposed

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.

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?

Myth: If I’m completely uncooperative, I can stop the case from moving forward.

Truth: All too often, people believe that if they refuse to participate in the process (divorce, child custody, child support, alimony, paternity rights, etc.), the process can’t move forward.  The truth is that while this might stall the proceedings temporarily, it won’t work for long. Not only will the process move forward, but it will more than likely end with a final result that you absolutely hate.  Why? The courts can only make decisions based on what is presented to them, and the other party has no responsibility to tell them your side of the story.

Your failure to respond to filings and refusal to show up for court dates hurts only you.  Only you (and your attorney) can defend your interests.  The thought of going to court makes everyone anxious.  It’s not a pleasant way to spend your day.  But what’s at stake is too important to let anxiety get in the way.  If you ignore the process, the process will go forward, ignoring you.

Myth: A good lawyer can be found cheaply or for free.

Truth: You wouldn’t walk into the super market and ask for free food.  A brand new car with an incredibly low price tag would probably make you suspicious.  So why would you expect a good family law attorney to be cheap or free?  Like all other things, when it comes to legal services, you get what you pay for.   Why would you want to pinch pennies with what is at stake in a family law matter?

If you truly cannot afford a family law attorney, it may be worthwhile to look into pro bono (free) legal services that may be available to you.  There are a few things worth remembering when looking for these services:

• Just calling private attorneys offices and asking for free or discounted rates likely isn’t going to get you free or discounted services.  It’s not that attorneys don’t want to help you, it’s that they can’t afford to!
• Family law matters are matters of civil law.  This means you don’t have the right to an attorney.  That only applies to criminal matters.
• Legal services agencies (agencies that receive funds from the Commonwealth to provide free legal services) can only provide services to individuals who, at the very least, meet income requirements.  In lawyer terms, you must be “indigent.”  This typically means your household’s income is equal to or less than 175% of the Federal Poverty Line.  Right now, that’s approximately $13,500/year +$4,500/year for each additional family member living in the household.

**Even if you meet this requirement, different agencies have different “priorities” for service.  These priorities are set by the Commonwealth when the agency is created.  While the agency might have discretion to accept other cases, they also have practical limits like their funding and their caseload.  Often these agencies can’t accept all cases that fall within their priorities, let alone accept ones that fall outside of them.