6 Complex Questions About Divorce & Their (Correct) Answers

Starting the divorce process can seem daunting and given the emotional stress you may already be under, it’s natural to have questions from the beginning of the process to your final divorce judgment. You may have already spent some time researching other FAQs or speaking to friends and family members to get a handle on what to expect.

While that’s a good place to start, most FAQs are pretty general and may not cover some of the more complicated questions that can arise. It’s also important to remember a friend or a family member, while well-intentioned, may not be the best source for answers to legal questions, especially given that no two cases are alike. As a family law attorney, I spend a lot of time helping my clients sift through misinformation and confusion. Here are six of the more complex questions I’ve received to help save you time, money, and a whole lot of stress:

I don’t want to get divorced. Can I stop this from happening?
No fault divorce is now universal in the United States. That means that if one spouse does not want a divorce but the other one does, the spouse who does not want the divorce can make it take longer, or cost more, but cannot stop the divorce altogether.  Along similar lines, it does not matter to the Court who files and who responds.  You will not “look bad” in the eyes of the Court if you are the one who initiates the divorce.

Can my children choose who they want to live with?
Contrary to what most people believe, minor children do not get to choose which parent they want to live with … ever. When children turn 18, they are no longer legally considered to be minor children, and at that point, they can choose where they want to live. Until that time, they can have an opinion, and they may be given the opportunity to voice that opinion through a Guardian ad Litem (an attorney appointed by the Court to represent the best interests of minor children). Ultimately, if the parents cannot agree on where their children will live, the judge will decide the issue based upon “the best interests of the children,” not what the children want. The wishes of the children are only one of several factors the Judge can consider when making the decision.

Can I deny visitation if my former spouse hasn’t paid child support?
Child support and Placement time (formerly called visitation) are two separate issues. Absent abuse or other extenuating circumstances, parents are expected to follow the court ordered placement schedule. Every parent also has an obligation to support his/her children financially. However, just because a parent may be behind in his/her support obligation does not mean that he/she does not get to spend time with the children.

Can I get more in a divorce settlement if my former spouse cheated on me?
In this day and age, marital misconduct has almost nothing to do with how your marital assets will be divided. The judge doesn’t care who your spouse slept with, or how your spouse misbehaved during your marriage. With few exceptions, marital assets will be divided equally.

I just won the lottery. Are my winnings considered marital property?
Yes, they are. If you win the lottery during your marriage and subsequently file for divorce – those winnings, with very few exceptions, are marital property subject to division with your spouse.

If I don’t like my divorce settlement, can I change it later?
Divorce judgments are final. That means that once they have been entered, for the most part, you cannot change them. Yes, you may be able to modify the provisions that pertain to support and/or placement of the children. And, of course, if your divorce judgment was entered into as the result of fraud or duress, you may be able to change it later. But changing most of the terms of the divorce judgment based upon fraud or duress is terribly difficult. So, when you are entering into a divorce judgment you need to treat it like it is set in stone. For the most part, it is.

If you have questions about divorce, or other family law related issues, our family law attorneys at McCarty Law in Appleton are ready to assist you.

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Katherine Canadeo

Family Law Attorney at McCarty Law LLP
Katie efficiently and compassionately assists clients going through divorce and other family law matters. She will assist clients in initiating or responding to petitions for divorce, legal separation, family support, or child custody revisions, and is frequently appointed as a parent coordinator for minor children.