12 Most Common Myths about Divorce in New York

1.             Visitation cannot be denied on the basis of nonpayment of child support. These two are mutually exclusive of one another, and each issue is resolved without reference to the other. 

2.             Adultery will not result in loss of all assets- Being unfaithful will not make you lose your children, home, assets or rights. New York is a No Fault divorce state, meaning that you are not required to prove grounds for divorce. An affair will not make a difference in terms of your divorce decree or settlement.

3.             Divorce cannot be denied- although the petition for a divorce is a request in front of the judge, that doesn’t mean the judge can deny your request. New York courts have ruled that there is no right to a trial on the grounds of irretrievable breakdown of the marriage. Once all the financial, custodial and visitation issues have been resolved at settlement or trial, divorce will be granted.

4.             Mothers are NOT always awarded custody of the children- This is one of the biggest myths in the divorce process. Although it seems like mothers are awarded custody more so than fathers, the reason for the judges decision is less so gender based and more so “best interest” based. While there was a historical bias in favor of mothers, the law has evolved along with changes in society to reflect that both fathers and mothers can be “custodial” parents. The best interest of the child theory stands in the decision of who will be the custodial parent- and that depends on the circumstances and characteristics that have nothing to do with gender.

5.             You don’t necessarily need a lawyer – can you represent yourself in a divorce? Yes. You could also try to build your own house...Should you? Absolutely not! – Trust us on this one, it will cost you much more in legal fees to fix the situation you got yourself into! If you can't afford a lawyer, the judge in New York may require your spouse to pay your attorney’s fees to ensure that both parties are adequately represented.

6.             You do not have to get divorced in the state you were married in - so long as you satisfy the residency requirements for filing for divorce you can file your case in any of New York's 62 counties.

7.             You cannot avoid paying child support – Child support payments in New York are established by law. If you have a minor child, and you are not the custodial parent, you will be required to pay child support. If you fail to comply with the order, the state of New York will take aggressive steps to enforce those orders and obtain the support owed. 

8.             Children cannot make the decision of who they get to live with- A child’s expressed preference may be taken into consideration as one of the factors guiding the judge’s determination – but by no means will it be the deciding factor. As always, the totality of the circumstances and the best interest of the child is the guiding factor.

9.             Divorce does not always lead to a battle- and it doesn’t have to! Divorce attorneys who are focused on resolving conflicts as opposed to stating or escalating them can help make the divorce process of negotiation and agreement rather than argument.


10.          Equitable distribution doesn’t always result in equal division- property can be and often is divided in an unequal manner based on the many factors that go into the judge’s decision about property division.


11.          Decisions on spousal support are not based on gender- decisions on spousal support (just like custody decisions) are no longer based on outdated prejudices and reflect the fact that women often earn more than their husbands. New York has adopted gender neutral guidelines to determine how maintenance is awarded and are based on economic realities of the respective spouses (regardless of their gender)


12.             Most divorces DO NOT go to trial- Going to trial is a very costly expense, so unless the parties want to spend tens of thousands of dollars, most divorces are resolved by reaching settlement agreements. Once parties reach agreements on all issues, the divorce could be granted on papers.