Herlihy Family Law
Alison Herlihy is a dedicated family law attorney with roots in Mobile, Alabama.
Herlihy Family Law
EP #7: 12 Common Myths About Family Law and Divorce Debunked with Guest Attorney Walter Gewin
Navigating the murky waters of divorce and custody battles is challenging enough without the burden of misinformation. In this eye-opening episode, attorneys Alison Herlihy and Walter Gewin cut through the noise to debunk 12 persistent myths that continue to mislead people facing family law issues.
Ready to separate family law fact from fiction? Listen now to arm yourself with accurate information that could make all the difference in your case. Have questions about your specific situation? Visit herlihyfamilylaw.com to schedule a consultation.
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I think it's important for people to understand that, even if the judge thinks that this divorce is all your husband's fault or all your wife's fault, the issue of fault is really just one factor that they consider when deciding what is the fair way to divide the assets.
Walter Gewin:Correct.
Alison Herlihy:You know they're going to look at how long the people have been married. What's the total asset picture like? What are the incomes of the parties if the parties have their own like separate assets? All that's going to come into play too.
Intro/Close:Welcome to the Herlihy Family Law Podcast, your trusted source for expert insights on navigating family law matters with clarity and care. Whether you're tackling tough decisions or seeking guidance for your family's future, we're here to help. Let's get started.
Alison Herlihy:Welcome back to the Herlihy Family Law Podcast. I'm Herlihy and and today I'm joined by attorney Walter Guinn, who plays a key role here Herlihy Family Family Law. Walter handles a wide range of family law matters, from divorce and custody to child support and even some probate. He's known for his thoughtful, client focused approach. We're excited to have Walter on the podcast to help clear up some of the common myths about family law.
Alison Herlihy:Family law Good Thanks for hopping in. You've heard from friends or seen on TV or read on Google isn't always how things work in real life. So in today's episode we're breaking down several of the most common myths about divorce, custody and child support. And we're going to several of the most common myths about divorce, custody and child support and we're going to set the record straight for you, hopefully. The first myth and this is myth number one, because I think it's the most common question that we get in divorce cases which is if you move out, you lose your share of the house. Or people say I can't move out because that's abandonment. Is that something that you hear a lot? Walter?
Walter Gewin:I hear it all the time. People focus a lot on that If they move out they're not going to get any part of the house. Or if their name's not on the deed, they're not going to get any part of the house, and that in and of itself it's just not conclusive. I mean a lot more goes into it, but you know you're right. I mean I hear that all the time.
Alison Herlihy:Well, and abandonment actually has like a specific statutory definition. It's one of the traditional fault grounds for divorce, like adultery or cruelty, and it's defined in the code is basically you have to fall off the face of the earth for months at a time before the divorce for it to legally be considered abandonment under the statute. But you know, if you're not getting along and you have another place you can go and it's especially if it's unsafe in the home that's not going to be held against you if you have to move out.
Walter Gewin:Absolutely. I mean I think in today's age it's not financially feasible for a lot of people. Yeah, but I mean if they can do it and it would be beneficial, you know, for them, and dealing with the child or children, I mean I think it's often great. It's just most people can't do it.
Alison Herlihy:Yeah, and since you brought up the issue of children, it is important to note that when custody of children is at issue, it's it's generally not a good idea to move out and leave the children at home with the other parent, because then you're basically giving them custody of the kids. So you know, if you, if you move out and leave the children, it makes it a lot harder to turn around later and say, no, they shouldn't have custody, I should have custody, you know. It begs the question. Well then, why did you leave them? Why didn't you take them with you? Why didn't you stay with them? Right, yeah? The second myth that we hear a lot, too, is people think that child support and visitation are contingent on each other, as in, if they don't pay child support, I don't have to let them visit, or if they won't let me visit, then that means I don't have to pay child support.
Walter Gewin:You're right. I see that in divorces and in custody cases and like CS cases between non-married parents. I mean, a lot of people don't send the children if they're not getting paid. And you can't do that, yeah, you're just putting yourself at risk for being in contempt.
Alison Herlihy:Yeah, I mean these are completely separate legal obligations and you know, it's kind of like that old saying we all heard growing up two wrongs, don't make a right Right.
Walter Gewin:Absolutely Right.
Alison Herlihy:If one person doesn't pay child support and then the other person withholds visitation in response to that, then they're both in contempt.
Walter Gewin:Correct.
Alison Herlihy:Yeah, what do you think are some helpful legal remedies if the other person is noncompliant with a court order? What are some options people have? What are some?
Walter Gewin:options people have. So I mean you know child support is due the month like due on the first late after the end of the month, and so if it's not paid by the end of the month, it's technically a judgment that could be then garnished, or you could file a lien, but or you could file a motion for contempt, which would be the same thing you could do if they were withholding visitation. You could, um, you could file a motion for contempt with the court. You know whether that be you know a short amount of time that's being withheld, or if it's just a pattern and they have you know a calendar of dates where they haven't been allowed to see their children and I guess, depending on on what happened and how severe it is, I mean it could be you know grounds to change custody.
Alison Herlihy:Well, not withholding child support right.
Walter Gewin:No, no, no, no, I was talking about withholding the children.
Alison Herlihy:Yeah, you know there is some case authority that talks about that disputes over visitation aren't sufficient to change custody but you're obviously referring to something that rises to a much higher level than that Right right Like way beyond. Yeah, and what are some of the common sanctions that are available for contempt?
Walter Gewin:Well, so if you filed a contempt about child support, you could get. You could get a judgment, you a judgment from the court, which you could also have without going to court, just because it's due by the end of the month. Otherwise it's a judgment you could get. You know, if you filed a contempt from the children being withheld, you could get makeup visitation, make up visitation, you know. So, like if you had a lot of time withheld, you know you might get the children, you know X amount of time and then you would go back to the normal schedule.
Alison Herlihy:Attorney's fees are also a common sanction for contempt that we see.
Walter Gewin:Absolutely. I mean you know, if the only reason you're coming back for court is contempt, I mean you know you've got a pretty good argument to try to get attorney's fees. You know, if not the whole amount you know, maybe you could at least get a reasonable attorney's fee judgment.
Alison Herlihy:Yeah, incarceration is a possible sanction for contempt, but I would say in my opinion, that's one that you almost never see. It's extremely rarely utilized. Would you agree with that?
Walter Gewin:I think you see it threatened, but you don't normally see it enforced.
Alison Herlihy:Yeah, one of the next biggest myths that we hear is that if your spouse cheats, that means you get everything automatically in the divorce.
Walter Gewin:I hear it all the time and you know I mean I'm not trying to make light of this, but it is. People put a lot more weight on this than than we have found. Judges, you know, tend to find it when they issue their ruling. It doesn't typically affect the division of assets or liabilities, like you you know, either would think it would or you might want it to.
Alison Herlihy:Yeah, you know. I think it's important for people to understand that, even if the judge thinks that this divorce is all your husband's fault or all your wife's fault, the issue of fault is really just one factor that they consider when deciding what is the fair way to divide the assets.
Alison Herlihy:Correct, I mean you know they're going to look at how long the people have been married. What's the total asset picture like? What are the incomes of the parties If the parties have their own like separate assets? All that's going to come into play too. So you know, just the fault is not the whole case is not going to rise and fall on that one issue.
Walter Gewin:I totally agree. I think. I think that there are a lot of people out there that have either seen a movie or a friend has told them that you know the other person should get nothing. But I mean, the truth is, is nobody's being left homeless, no one's receiving nothing?
Alison Herlihy:Right, yeah, I mean, nobody's going to have to go live in a cardboard box under the interstate Correct. And, by the same token, it's not, you know, if your spouse has an affair. It's not like you won the lottery and you're going to get more assets than y'all even have. I think that's.
Alison Herlihy:Another misconception people have too is that they'll almost be like a punitive damages award if that happens, but you're still getting all of your financial assets of your marriage are the pie and you're still getting part of that pie, not more than the pie.
Walter Gewin:Correct. And then people also tend to think that, just because something happened, that they don't have to participate in discovery, in the legal process. But I mean, everyone has to do that, regardless of allegations and what's happening.
Alison Herlihy:Yeah, yeah, yeah, I think you know. I think people think too that if adultery is involved, that automatically means the guilty party has to pay all the attorney's fees. Right, which, which might happen, but often does not happen. Correct, yeah. Another myth that we hear a lot of times is that, especially people have multiple children, that you can automatically reduce your child support if one of the children turns 18.
Walter Gewin:Right. I mean I can't tell you how many times we've had it where they, like you said, they have two children, one ages out, and they just cut it in half and they make half payments to the spouse for years sometimes. And you know, the problem is, is child support's a formula? It's not that easy and by doing that you're risking, you know, owing a lot of money in past due child support and accumulating a lot of interest.
Alison Herlihy:Yeah, because, like you were explaining earlier, those payments are automatic judgments against you the month that they're due. Right and so if you just make partial payments per your prior court order, everything you haven't paid is automatically ticking up interest Right? It's also important to note that people think 18 is the magic age, but here in Alabama the age of majority is 19.
Walter Gewin:Correct.
Alison Herlihy:Yeah, I think a lot of people don't know that A lot of people don't.
Alison Herlihy:One key exception to that rule, too, though, is if you have a child who's permanently disabled, and you can actually be ordered to pay child support when they are an adult, provided that the disability occurred when they were a child. So that that's something we've seen a lot more recent years as, like um, autism diagnoses have become more prevalent and more understood that something that's a lot more common, um, but you know like, if you have a child who you know say they're a teenager when you're getting divorced and they can't do their activities of daily life themselves, like they can't feed themselves, dress themselves, they don't know to call 911 if there's an emergency then you might be looking at child support, permanent child support.
Walter Gewin:Right.
Alison Herlihy:Right. The next myth is that social drinking or occasional cannabis use automatically leads to a loss of custody.
Walter Gewin:Absolutely. You know, I think I feel like there's there's some gray area here, especially with marijuana usage, but I mean I have never seen someone that uses marijuana lose custody in and of itself. Just because of that. Just because of that, I mean, I think obviously, if you have one parent that is positive and the other is not, then I mean how much weight is given to that? I mean, I think it depends on the judge, but yet again, I still think it's going to be minimal.
Alison Herlihy:Yeah, I mean, and even though marijuana is, of course, still illegal in the state of Alabama, it's, I think it's widely not considered to be as dangerous of a drug compared to other drugs like, you know, cocaine, or opiates or methamphetamine, you know, where you see much more obvious harm to children.
Walter Gewin:Absolutely.
Alison Herlihy:Especially if you know, especially if you have a situation where the children aren't exposed to the marijuana use you're going to have a hard time making a case that somebody should lose custody only because of that.
Walter Gewin:Right. Well, and often I feel like one of the parents probably used during the marriage or during the relationship. So then, but then try to impute that against them. You know, it's just less compelling.
Alison Herlihy:Yeah, yeah. It's kind of one of those things like okay, well, you were okay with it last month, but you're not okay with it today. That's, that's going to be hard to get a judge to understand that.
Walter Gewin:I think so.
Alison Herlihy:Yeah, and then I mean with alcohol use. You know, that's kind of its own beast, because alcohol is of course not illegal. It's perfectly legal to drink alcohol. So if someone takes, say, a fingernail test and they test positive for alcohol, well what does that mean exactly?
Walter Gewin:Right. Well, at that point it's going to be all about the levels and you know, and what those levels indicate. But I think, yet again, I think that alone, without some corroborating concerns, you know it's not as strong of a case, you know, but it's more than nothing, obviously. But I think you know, if that were, if that were it, you probably need some, you know, an expert to come to court or some way to kind of indicate how bad it is.
Alison Herlihy:Yeah, I mean, like if you have other facts or circumstances which indicate that the drinking is dangerous to the child. Right, you know like, say, the person's gotten multiple DUIs or you know they. I mean, we've had actually this happen more than once in cases where people show up to pick their children up from school and they're drunk.
Walter Gewin:Absolutely.
Alison Herlihy:I mean, I never thought I would see that happen, but it's happened more than once it has and surprises me every time. Yeah, so I mean things like that. I mean that's a no-brainer, that's a dangerous situation for the child, that's going to be a big deal, sure, you know, but yeah.
Walter Gewin:High levels. You know, danger concerns maybe an arrest. I mean obviously that goes hand in hand.
Alison Herlihy:Yeah, next myth we were talking about adultery a minute ago. A lot of people have the idea that if somebody commits adultery, it automatically means they're going to lose custody.
Walter Gewin:Right, I think you know I guess this is like due to maybe the way things used to be a long time ago and movies, I mean people think adultery is you're getting nothing, You'll never see the kids again.
Alison Herlihy:Yeah. But I think it's important to understand that you can be a bad spouse and not necessarily also be a bad parent. Right, I mean, nobody thinks adultery is good, but that doesn't automatically mean you're a bad parent, right, I mean nobody thinks adultery is good, but that doesn't automatically mean you're a bad parent.
Walter Gewin:Right.
Alison Herlihy:And I think the really important distinction is is just kind of like what we were talking about with alcohol use, of marijuana use. Like is the adultery? Is that behavior impacting the child somehow? So I mean, like you know, if you're having an affair with somebody that's a convicted felon or a child molester and you're bringing your children around this dangerous person, Right.
Alison Herlihy:You know that's a whole different ballgame than if somebody's had an affair and the children have never even met the person, don't know anything about the person don't even know the person exists, right, right, I mean at that point it's just you know. Ok, so y'all's marriage isn't working, but this kid is not being affected and it's just fine and not in danger. Yeah, I mean because the paramount consideration when a court is deciding custody is what's in the child's best interest.
Intro/Close:Right.
Alison Herlihy:I mean, that's what everything boils down to, and if you can't make the case that something's actually impacted the child, then it's probably not going to impact the custody decision, don't you agree? I do. Next myth related to that is whoever gets custody automatically keeps the house.
Walter Gewin:Right People put a lot of weight on keeping the house.
Walter Gewin:I mean a lot of people want to keep the house and maybe it's really not the best decision for them financially. Also, you know, a lot of people want everything to stay the same and the kid will be in the house and you know they'll never know we're getting divorced. Well, I mean, that's just all not true, you know. So I think the thought that you know you're going to continue on the same life is just not true. I mean you're going to be divorced and so one person you know that has custody is not guaranteed to get the house.
Alison Herlihy:Yeah, I do. We both do a lot of work as guardian ad litems too, and I think I have found, with all the children I've talked to and represented over the years, that children often know a lot more than their parents think they know.
Walter Gewin:Absolutely, I completely agree. I mean people can think, okay, we'll stay in the house and then you know, I'll leave when it's your time and you'll come in, you know, and that'll solve everything. But I mean that is just a dream, that is not they're going to know it's going to different.
Alison Herlihy:it's a house as a structure well, and the court has the responsibility to equitably divide the marital assets, and for your average person, your house is probably your biggest marital asset, and so if you want to keep the house, really the only way you're gonna be able to keep it is if you can buy the other person out of their part of that equity.
Alison Herlihy:And if you're not in a financial position to do that, it's going to be impossible for you to keep the house Right. And related to that is you know most people probably their mortgage is in joint names and there's not going to be a fact situation where the judge lets you know spouse A keep a property with a mortgage that has spouse B's name on it. So if you, if you want to keep the house, you're going to have to be able to refinance to remove your spouse's name from the mortgage, and if you don't have an income that can support that or your debt to income ratios out of whack and you can't get approved, then that simply isn't going to be an option for you.
Walter Gewin:Right, well, and I feel like the best, then that simply isn't going to be an option for you. Right, well, and I feel like the best. The best divorces are going to be the ones where both parties can move on and not be entangled. And then also, I mean, I think a lot of people don't want to remain in the home where their marriage, you know, did not work.
Alison Herlihy:Yeah, but, some do, some definitely do. Yeah, I mean, you know they associate it with the memories of the Christmases and the Thanksgivings and all those good things. But yeah, I think there's a lot of value in a fresh start.
Walter Gewin:I think so too.
Alison Herlihy:For sure. The next myth a lot of people think is that you can force your spouse to pay all of your attorney's fees up front.
Walter Gewin:think is that you can force your spouse to pay all of your attorney's fees up front. Right, they think that all the time You're right. I mean I kind of look at it like I never go into a case expecting attorney's fees to be awarded. I mean I think that if you do, you'll almost always be disappointed, especially in a divorce where each party is getting divorced and they're going to get a division of assets and debts. The only time that I would think it's likely is when one parent hasn't worked for a long time.
Alison Herlihy:Yeah, if you have situations where there's like an enormous income differential between the parties or if you have situations where one person's fault is really egregious, that can come into play with attorney's fees, or if somebody engages in really bad behavior during the litigation itself. Like you know, what we typically do in divorce cases or any civil case, you know you do discovery, which is asking for information from the other side that you need to prepare your case, and if the other side refuses to comply with discovery, that's a really typical sanction that we'll see in our court is they'll make the other side pay some part of the attorney's fees because of that.
Walter Gewin:Absolutely.
Alison Herlihy:Yeah.
Walter Gewin:I think very rarely is it going to be dollar for dollar or as much as you think.
Alison Herlihy:but yeah, and if attorney's fees are awarded, it's usually the client is getting reimbursed on the backend. You know they're not getting ordered to pay attorney's fees like upfront Right, even though there is some statutory authority to ask for that. But that's you know. It's atypical in my opinion.
Intro/Close:I agree.
Alison Herlihy:Next myth if your spouse sees a therapist, they will lose custody.
Walter Gewin:Right, you know, I think therapy gets a bad rap in divorces. Therapy gets a bad rap in divorces, but you know, the fact is, therapy is needed.
Alison Herlihy:I mean people that need help and need therapy they should get it and not be concerned about it coming back up in the divorce. Yeah, I think a lot of people are worried about it being held against them, which you know. Your records with your therapist can potentially be subpoenaed if custody is an issue in your case. Because, even though, yes, they are confidential, yes, they are privileged, our law provides that there's an exception to that privilege when custody of children is at issue because, like we said earlier, the best interest of the children is what's paramount. So, I mean it can come up, it can be used, but, yeah, I would say I mean nine times out of 10, if you're getting help, most courts are going to think that's a good thing.
Walter Gewin:Absolutely of something you know. Being in there, that is, you know, says that you can't have the children, is rare, unless you know serious mental illness is involved or something like that.
Alison Herlihy:Yeah, I mean, if we're talking about a severe enough mental illness that you're a danger to yourself or to others, then that certainly is going to impact the custody case as it should.
Walter Gewin:Absolutely.
Alison Herlihy:If you're violent or you can't take care of yourself, then obviously you can't take care of children right but for your average person, who's going to get help? Just dealing with right getting divorced is hard right and if you need a professional to help you get through that and process all these changes, that's nothing to be ashamed of right, I mean depression, mean depression, anxiety?
Walter Gewin:things like that, I would say, are common in almost every divorce.
Alison Herlihy:Yeah, next myth. This is kind of related to what we talked about earlier, but I can get more money because my ex is a jerk.
Walter Gewin:Right, yeah, you know. I mean a lot of people are out there looking for money and they think you know.
Intro/Close:Oh.
Walter Gewin:God he's, he's a jerk, he's a narcissist, um, but you know that in and of itself is not enough, and also narcissists is, you know, barely very thrown around and not actually used in context.
Alison Herlihy:But um, most people that are getting divorced probably think the person that they're getting divorced from is not the nicest person. Otherwise they wouldn't be getting divorced. Right and likewise, your spouse that you're getting divorced from probably has some bad things to say about you too.
Walter Gewin:Absolutely Well. I think you're looking at a snapshot of somebody you know in court dealing with them their answers. I mean, that's obviously not.
Alison Herlihy:Well, and like we touched on earlier, the asset division you're you're going to see in court is based on what you actually have. Right, you're not getting punitive damages in divorce court to like punish the bad person, you're going to get a fair proportion of what exists. A lot of times that's half. If the judge thinks the other person is really bad, you might get more than half, but you're not getting 100% or more than 100% about how bad the other person is Correct.
Walter Gewin:You're not getting 110% of someone's monthly income Right. Never going to happen.
Alison Herlihy:The next myth this is a really, really common one, too in the custody area is that my child can choose who to live with at a certain age. Right the most common age, I hear probably, is people seem to think there's that 14 is the magic age where children get to decide, you know, if they go visit dad or whether they have to keep living with mom. Is that an age? You hear a lot.
Walter Gewin:I was thinking when you were saying that, 14. Absolutely, I think everyone thinks OK, you know they're, they're a teenager, you know they're almost about to be, you know practicing to drive. 14 year olds get to choose. And no, they don't Min of them. And that's where we are. So what the law?
Alison Herlihy:says in Alabama is that, if the child is of sufficient age and maturity, that the child's wishes are just a factor that the court can consider amongst all the factors that the court considers, like the fitness of the parents et cetera, and what is sufficient age and maturity. That depends on the child. You know, I mean I've met some eight year olds that are more mature than some 16 year olds.
Walter Gewin:Absolutely. You know, and I think people, people want to simultaneously parentify the children and give them opinions and then also treat them like children, and there's a reason you can't do that. They are children, they don't get to choose, they're easily persuaded. Their brains aren't fully developed. Yeah, yeah, it's true.
Alison Herlihy:Well, you're a parent, you know how it goes right.
Walter Gewin:I've seen that. Yeah, they both can be very compelling and just well.
Alison Herlihy:Yeah, I've seen. Yeah, they both can be very compelling and just well, yeah. And so the last one that we'll touch on is people think that the court is going to take affirmative steps to make sure that you or your ex follow the custody or support order or other court orders and once your case is over, your case is over there's not going to be anybody knocking on your door to make sure that you're going by the visitation schedule or make sure the other person's paying what they're supposed to pay or anything like that.
Alison Herlihy:So if someone is not complying with a court order, then if you want to enforce it, then the burden's on you to file a motion for contempt and take them back to court or take some other affirmative action to enforce the order you know there's not like a divorce court police coming around to see what everybody's doing.
Walter Gewin:I'm always. I'm always surprised at the amount of people that have not read their order. Surprised at the amount of people that have not read their order. I mean to me that if you were divorced or went to custody court, your most important document would be your final order and you would have it in the car, you'd probably have it on your phone, you'd have it in your house and you would just refer to it constantly. You know now, obviously, in most orders it's going to, you know also be as you otherwise agree. And then I would say you know you need to do that in writing, you know with the other person and then if something comes up, great, you have proof. But it truly is amazing the amount of people that have not read it and then also are opinionated about why it's not being followed, and you know the other person should be responsible.
Alison Herlihy:Well, and to your point, Walter, I mean I've met with quite a few clients over the years who we didn't handle their initial case, some other lawyer did, and they come in here about an enforcement issue and they don't even have a copy of their court order enforcement issue and they don't even have a copy of their court order, right?
Walter Gewin:I mean I'm amazed how that happens, unless maybe you're dealing with two people that really get along well and have kind of not gone by it at all. But then you know, I mean that's great until there's a problem. And when there's a problem everybody looks and goes back to that order because that's what you can enforce.
Alison Herlihy:Right, yeah, exactly. Well, I hope I think this has been a good conversation. I mean, I hope that this clears up some of those misconceptions that a lot of people have, and thanks, Walter, for joining me today and helping debunk some of the most common myths that we see in our family law cases. To our listeners if you're facing a legal issue and you're not sure what to believe, don't rely on rumors. You need to reach out to a qualified attorney for actual legal advice. Um, not what you've heard down the street and not what you've read on Google or an AI chatbot either.
Walter Gewin:People do that all the time. I mean you're putting yourself at risk to be held accountable for what someone told you in another state or what they heard, and I think it's best why not spend the time and a little bit of money, get some advice and I think it's best.
Alison Herlihy:Why not spend the time and a little bit of money, get some advice? Yeah Well, for more information or to schedule a consultation, you can visit us at www. herlihy familylaw. com. And until next time, yeah, thanks.
Walter Gewin:Enjoy them.
Intro/Close:Thank you for tuning in to Herlihy Heath Heath Family Law podcast. Remember you don't have to face family law challenges alone. Visit herlihyfamilylaw. com or call 251-432-7909 to learn more.