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Matrimonial Matters: Legal myths persist even with availability of info


Sara Stout Ashcraft

Sara Stout Ashcraft

The Internet presents a virtually endless treasure trove of information. Where previously people relied on friends and family for general information about divorce and other family law issues, now they can simply hop online and browse through a variety of free information.

However, it appears that the public is no better informed by the Internet than by their other sources. Consequently, when talking with potential clients, family law practitioners often still have to deal with the following misconceptions:

• That living separate and apart for a year pursuant to a separation agreement gives the parties a “no fault” divorce. I am convinced that a number of people who attempted to do a conversion divorce under New York law are, unbeknownst to them, still married to each other. Perhaps it is the word “conversion,” implying that the separation agreement is transformed into a divorce after a year.

Unfortunately, the law is rarely magical, and the parties, of course, must complete all the statutory steps required for the granting of a divorce in order to be divorced. A related myth is that simply living separately constitutes a “legal separation.” Only a fully executed Separation Agreement or a Separation Decree handed down by a court meet the legal separation criteria.

• That leaving the marital residence constitutes “abandonment.” A collateral myth is that such “abandonment” allows the other party to have the children and all marital property. True abandonment of one party by the other for more than a year gives the abandoned party grounds for a divorce — nothing more.

• That child support does not need to be paid if the custodial parent refuses to let the other parent see that children. The reverse of this myth is that if the non-custodial parent does not pay child support, the custodial parent does not need to allow him or her to see the children.

Non-lawyers seem to have a great deal of trouble understanding that visitation and child support have no direct effect on each other, and when it is explained to them, the “unfairness” issue takes front and center.

• That a wronged party has the right to file an alienation of affections action against the person with whom the other party is having an extramarital relationship. While that is true in a few states, New York is not one of them. Alienation of affections is one of the traditional “heart balm” actions, and is the one that clients are most likely to ask about.

However, there are three other traditional heart balm actions also prohibited in New York. They are mentioned here for the sake of completeness and because they may come up in a legal term category on “Jeopardy.” They are: “criminal conversation,” (a husband’s action against another man for having sexual intercourse with the first’s wife), “seduction” (an action against a party for inducing a previously chaste individual to have unlawful sexual intercourse); and “breach of contract to marry” (an action by one party against the other for not going through with the wedding).

• That one party does not have any claim to property held in the other party’s name. While this did hold some sway before New York adopted equitable distribution more than 30 years ago, it is long gone from divorce actions except for nervous clients’ fears. A related myth is the belief that because only one party was working and paid for certain property, the other party is not entitled to have it. Conviction in these myths seem mostly confined to the person whose name is on the property or whose earnings paid for it.

• That when a child reaches a certain age (usually 14, 15 or 16), he or she can live with whichever parent her or she chooses. I used to get at least one phone call a week on this issue, but they seem to have slowed down over the past couple of years. In any case, as family lawyers know, when the child turns 18 he or she is considered an adult and can choose where — and with whom — to reside.

There is one thing that all these myths make clear — that even in the Internet age, there is still a need for lawyers.

Sara Stout Ashcraft is a partner in Ashcraft, Franklin, Young & Peters LLP. She concentrates her practice in the areas of matrimonial and family law.

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