Three Commonly Misunderstood Divorce Terms

We all know words matter. As family law attorneys, we’ve seen the headache and heartache that misunderstood terms and assumptions can cause. It’s our job to make sure that our clients and potential clients understand the actual meaning of certain divorce terms to avoid unnecessary stress, poor decision making and worse, an unwanted outcome that could last for years. 

Misunderstandings like these can complicate divorce and leave people vulnerable and unprotected: 

“We’ve lived together for seven years, and that’s common law marriage, so I’m protected if we split.” 

“My partner and I have separated, but the divorce isn’t finalized, so I still have the right to any new assets they accumulate.”

“My partner cheated so I should get more!” 

Here’s the truth behind three commonly misunderstood terms: 

1. Common Law Marriage
   Common law marriage is one of the most misunderstood marital concepts. In New York, one thing is very clear - the state does not recognize common law marriage, even if a couple has been living together for a decade, is financially entangled, and all the neighbors believe they are married. In this example, the couple does not have any of the legal protections or rights afforded to legally married couples in the case of a split. However, common law marriage is recognized in some U.S. states. The definition of common law marriage varies among the states that recognize it, and cohabitation alone does not guarantee that a relationship is common law. 

   The term common law marriage also gets confused with domestic partnership. A domestic partnership is a legally recognized relationship that provides some - but not all - of the protections available to married couples. Domestic partnerships were a popular option among same-sex couples prior to the 2105 Supreme Court case Obergefell v. Hodges, which required that all states recognize and license same-sex marriages, and they are still a viable option for all types of couples today. 

   The bottom line: these matters are complicated.  With rights like inheritance, Social Security benefits, division of assets, and custody of any children at stake, it’s dangerous to assume that certain protections are in place. An experienced family law practice can provide expertise and guidance regarding a couple’s legal rights. 

2. Date of Separation
   The date of separation (i.e. the “cutoff date”) is one of the most important dates in a divorce proceeding. In simplest terms, it’s the official day a relationship ended - but this is rarely the actual date of divorce. Technically, it’s either the date one spouse files for divorce, or if the separation is amicable, then it’s a date mutually agreed upon by both parties. It’s significant because it marks the last day that a couple accumulates marital assets or debts, and this is one reason it can be dangerously misunderstood. For example, if a married couple physically separates on June 2nd, the divorce is filed on October 2nd and one of the partners gets a large year-end bonus on December 2nd, the couple may question how much, if any, of the bonus is marital and how should it be divided. The date of separation will help determine the answer. The date of separation is also significant because it marks the date that spousal maintenance and child support obligations can begin. Qualified divorce attorneys can explain all of the important dates and steps in a divorce, and ensure that the couple understands their rights and obligations throughout the process. 

3. No-Fault Divorce (i.e. “Irretrievable Breakdown” in NYS)
   With the no-fault option, it is unusual for someone to file for a divorce on fault grounds. People typically want to seek fault grounds when they believe that doing so can impact custody or finances. People are surprised to learn that fault, such as adultery, rarely impacts either of those things. In New York, one person merely needs to seek a divorce based on the “irretrievable breakdown of the marriage” for a period of six months or more. It also does not matter who files for divorce first - it has NO IMPACT on the outcome of the issues involved. 

To sum up - knowledge is definitely power when it comes to legal terminology. Many terms get thrown around casually and morph into misunderstandings that mislead people to believe in uncertain and inaccurate outcomes. Understanding the true legal definitions for marriages and divorce can protect you from making some easily avoidable mistakes. 

At Artese Zandri, we represent and counsel clients on family law issues. If you or someone you know is considering divorce, reach out to us at  consultations@artesezandri.com for a complimentary consultation.