Common Misconceptions About Divorce & Family Law

Law Office of Seth D. Schraier, P.C.


Matters involving the institution of marriage – such as family changes, divorce, and child custody – often involve various collective popular notions that might not actually be true. Whether you want to make changes to your family or you are trying to understand the divorce process in New York State, getting experienced guidance is crucial. 

At Law Office of Seth D. Schraier, P.C., I am ready to guide clients in the legal matters of family law and divorce. As a knowledgeable New York State family law attorney, I am available to discuss your unique circumstances, explore your options to seek divorce or family changes, and help clarify any misconceptions. My firm proudly serves clients throughout New York City, including Brooklyn, Manhattan, the Bronx, and the rest of the state of New York. 

Common Misconceptions about Divorce & Family Law 

There are a lot of false assumptions out there about what happens during a divorce or any other change in family status. This is why family law attorneys must properly educate their clients about the legal procedures involved and what to expect. Here are some common myths and misconceptions about divorce in New York State and a brief explanation of why they're false: 

Misconception #1: It's possible for one of the spouses to deny the divorce. 

In New York State, it is possible to get a divorce even if your spouse doesn't want it. This is known as a "default divorce" or "no signature required" divorce. A default divorce occurs when the spouse seeking divorce files the petition, serves the divorce notice to the other party, but the respondent fails to respond before the deadline. Thus, through a default divorce, you can get a divorce in New York State without your estranged spouse's signature or approval. 

Misconception #2: If the other parent doesn't pay child support, I can withhold visitation. 

This is a common misconception which often leads to several problems. If a noncustodial parent is delinquent with child support obligations, the custodial parent isn't legally allowed to withhold visitation. Essentially, child support and parenting time are two separate divorce issues with different rules. The custodial parent can file a contempt action against the non-compliant parent in court, seeking enforcement of the child support decree. 

Misconception #3: The mother is always awarded primary custody of the children. 

This is not true. The idea that the mother is always awarded primary custody of the children is outdated. In New York State, custody is often awarded based on the best interests and welfare of the children. The court may consider the following factors: 

  • The reasonable preference of the child provided they are of sufficient age and maturity to give an opinion 

  • Each parent’s physical and mental health 

  • Each parent’s willingness to facilitate a relationship with their child and the other party 

  • The child’s relationship with each parent, siblings, and extended family 

  • The ability of each parent to meet their child’s physical, educational, and emotional needs 

  • The parent’s ability to collaborate and communicate in a co-parenting relationship 

Either the child's father or mother may be awarded physical or legal custody, irrespective of gender. 

Misconception #4: Alimony is a part of any divorce. 

Contrary to popular opinion, alimony or spousal support isn't awarded in all divorce cases in New York State. The court will only award spousal support if the requesting spouse needs financial assistance and the other party has the resources and ability to pay support. Also, various factors will be considered to determine the type, amount, and duration of alimony. 

Misconception #5: Our assets will all be split 50/50. 

This is another common misconception. New York is an equitable distribution state. In a contested divorce, marital property will be divided equitably and fairly between the spouses, but not always equally. The following factors will be considered to divide marital assets: 

  • The length of the marriage 

  • Each spouse's earning power and separate property 

  • Each spouse's age and health condition 

  • Each spouse's contribution to the marital partnership 

  • One spouse's contribution to the other party's career 

  • Each spouse's potential earnings or future financial circumstances 

Misconception #6: You have to get divorced in the state you got married in. 

This is not true. You don't necessarily need to get divorced in the state you got married in. However, in order to get a divorce in New York State, you must meet any of the following residency requirements prior to filing: 

  • You or your spouse must have been living in the state continuously for at least two (2) years 

  • The divorce ground occurred in New York, and either you or your partner lived in the state for at least one (1) year 

  • You got married in New York, and one spouse has lived in the state for at least one (1) year 

  • You and your partner lived in New York as a married couple, and either spouse has been living in the state for up (1) to a year 

A knowledgeable New York State divorce lawyer can guide you through the legal procedures involved and help you make intelligent decisions in your familial and marital dissolution matters. 

How Legal Counsel Can Help 

Filing for divorce or making family changes in New York State often involves complex processes. Regardless of the different pieces of misleading information out there, being able to differentiate facts from fiction can make navigating the process easier. At Law Office of Seth D. Schraier, P.C., I'm dedicated to offering reliable advocacy and skilled guidance to clients in divorce and family law-related matters. 

As your attorney, I can review every detail of your case and discuss your available legal options. I can enlighten you about the truth about the New York State divorce process and walk you through the procedures involved in making family changes. Above all, I will work intelligently to address your needs and concerns and help protect your family, your best interests, and your future. 

Contact me at Law Office of Seth D. Schraier, P.C., today to schedule a simple consultation with an experienced family law attorney. My firm proudly serves individuals and families throughout New York City, including Brooklyn, Manhattan, and the Bronx.