This familiarity with family law is one of the reasons that myths about divorce are so prevalent. Auntie Ada’s cousin told her brother who told Ada that if you move out of the family home, you lose your interest in it. Totally false, but frequently regurgitated.
Another factor in the false divorce rumour mill is the contribution made by the media, through television dramas and theatrical releases. Think: The War of the Roses with Michael Douglas or 1979’s Best Picture Kramer v. Kramer with Dustin Hoffman and Meryl Streep. ( If you have not seen these films, you should!)
So what’s true and what’s false? Let’s review a few:
1. It will be very easy to receive more than 50% of the family assets.
The law in most jurisdictions calls for an equal division of family property. In British Columbia there are a number of situations that could impact a 50/50 division. For example, if one spouse receives an inheritance near the end of a marriage, that spouse may be able to retain a larger share of the inheritance. Also, if one spouse brings the majority of the assets into the marriage and the marriage lasts five years or less, the owner spouse will receive a larger share of the family assets. Nonetheless, the general rule is equality.
2. I will receive alimony for the rest of my life.
There are cases where spouses receive life long maintenance or support. (Alimony is a word that has been long abandoned.) However, these cases uniformly involve spouses over 50 years old who have been in marriages of 20 years or longer and have very marginal employment skills or have significant health problems. For the most part, spouses are expected to contribute to their own support and to make reasonable efforts to become self-supporting. Time limited spousal support is much more common than life-time support.
3. If my spouse commits adultery I will receive all or most of the family property.
Most jurisdictions, including Canada, have enacted no-fault divorce laws. That means that the reason for the divorce is not relevant to the law with respect to the division of assets.
4. I can sue the person that my spouse committed adultery with and they will have to pay me monetary compensation.
Most jurisdictions, including British Columbia and the rest of Canada, have abolished this cause of action known as “alienation of affection”.
Hawaii, Mississippi, North Carolina, Utah, Illinois, New Mexico and South Dakota still retain this law, although there are a dearth of cases in this area.
However, it is likely that this action will become more popular in these States because of Cynthia Shackleford’s success in North Carolina. She received a judgment for $9 million when she sued her husband’s mistress after the demise of her 33 year marriage. The key to a successful action is to prove that the marriage was stable and happy until the mistress intervened. As well, the claimant need not show a sexual relationship, kissing and flirting is sufficient.
I expect that divorce myths will begin to fade away with the information explosion that is the internet. Legal information is now readily accessible to everyone.
Lawdiva aka Georgialee Lang BA JD