Interviewer: I’m sure there are many misconceptions people have about divorce that you have to dispel.
If You Leave Your Home Because of a Dangerous Atmosphere, Is It Considered Abandonment?
Tanya: Actually we just wrote an article about funny and interesting common misconceptions about divorce. Some people think that if you leave the house, for example, if you’re in a dangerous situation and it’s becoming violent, if you leave the house to calm things down, that’s abandonment. You will be punished by the court if you leave. That is not true. There are circumstances where it makes sense to stay in the house and there are circumstances where it makes sense to leave the house. However, it is not abandonment.
Why Can’t We Just Divide Everything in Half? Some People Have a Too Simplistic Attitude toward a Divorce Proceeding
Tanya: There are all sorts of misconception surrounding divorce. I had a client that came in this week and she said, “Isn’t it simple, we can just divide our assets and that’s it?” and I said, “Yes, absolutely, except I have no information about the other person.”
So how am I going to divide something I have no knowledge of? Sometimes people are too simplistic about the process. It’s not immensely complicated, but you really do need to think things out a few steps ahead of time. Accurate information is necessary to make a fair settlement. The process of getting information is called discovery. The lawyer has methods to get the information.
Divorce and Bankruptcy
Another misconception concerns bankruptcy and this is where I have an area of expertise. Twenty-five percent of my practice is bankruptcy work.
Credit Card Debt under the Name of One Spouse but Accrued During a Marriage Is the Responsibility of Both Spouses
Debtor/creditor law is basically the opposite of family law. So if a husband has a credit card bill that he acquired during the course of the marriage, and the debt was on marital expenses, that is part of equitable distribution in a divorce.
If One Party Files for Bankruptcy, the Responsibility Lies with the Party Whose Name Is on the Card
The wife will have to pay a portion of that credit card bill or it will be offset against something else. In bankruptcy law or in debtor creditor law, it doesn’t matter; it’s only that his name is on it. If the wife’s name is not on it, she will not be responsible for part of the debt.
Visa comes after the named cardholder for the bill. Visa is only going after the husband if the card was in his name. Visa is not going after the wife. Whereas in a divorce agreement it may be the wife has to pay him $500 a month to pay this off. That’s between them and the divorce, but Visa is never going after the wife’s money. The credit agreement was between Visa and the cardholder only.
Why Everything Can’t Be Divided in Half: It Is Important to Ensure Accuracy When Determining in Whose Name the Debt Is under and in Whose Name the Property Is under
That means that you do have to be very careful when making a settlement. There has to be clear delineation under which party name is property under and under which party the debt is named. This is because no matter what you do in the divorce, you have to contend with the real life collection agents and creditors.
Interviewer: I never thought of it that way. It’s difficult if you’re going from one household to two, there are budget changes and a large number of financial issues that have to be taken into consideration.