The Urban Legend #1:
Minors choosing where they can live.
One of the most widely circulated urban legends that I encounter in the practice of divorce law is that there is an age at which children can legally choose the parent with whom they will reside. I have heard ages 12, 14 and 16 regularly. In fact, there is no age at which a minor has a legal right to choose. Once a child reaches the age of 18 he or she is no longer a child and therefore, at that time, has a choice
The commonly accepted adage from many practitioners and judges is that children “vote with their feet”, meaning that they will ultimately make things happen by sheer force of will. While this may occur in some cases, it is not an ideal situation in that it puts the child squarely in the middle and can be emotionally damaging or overly empowering, neither of which is good for a child.
Urban Legend #2:
Spousal Support does not automatically terminate if the receiving spouse remarries.
This legend is based on accurate historical information that is no longer true. Spousal Maintenance, formerly called Alimony, used to terminate upon the remarriage and sometimes even upon the cohabitation of the receiving spouse. Case law in Vermont changed that. While it is possible, although more and more unusual, to put a termination clause in a Marital Settlement Agreement, the courts now consider modifications or terminations of spousal support based on whether or not the financial circumstances of the receiving party have significantly improved due to the remarriage. Remarriage to a multi-millionaire might be a sufficient basis on which to reduce or terminate support.
Remarriage to a person with no means or average means may not change the receiving party’s financial circumstance in any meaningful way and therefore will not form the basis for a modification. There is also the issue of “compensatory spousal support” which does not exist by stature but has appeared in case law. Compensatory spousal support is meant to make up for the contributions of the spouse to the marriage and is not to be modified if the spouse remarries.
Urban Legend #3:
Leaving the marital residence is not abandonment.
The end of a marriage is an emotional time. People often wish to separate to ease tensions and to allow both spouses to adapt to the idea that their lives are changing. I am regularly asked at initial consultation about the concept of abandonment because people are told that if they leave the residence they have given up their rights. According to Black’s Law Dictionary, abandonment is a legal term meaning “[t ]he surrender, relinquishment, disclaimer, or cession of property or rights.” If one spouse leaves the marital residence and establishes a new residence elsewhere, he or she has not abandoned the residence for purposes of having a claim for a share of the equity or items of property inside. He or she has merely made an understandable accommodation to benefit both parties.
Having said that, the person who leaves the residence has a decidedly weaker claim to actually get the residence in a divorce so, if the understanding is that one person will leave for a short time and then resume residency, either exclusively or with the other spouse, the Agreement must be in writing and clearly articulated. While a person may not have legally abandoned the property, possession is still nine tenths of the law and the ramifications of leaving may be long term and unanticipated. If ultimate possession of the property is the goal, then leaving may not be abandoning, but it may still be ill-advised.
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