Two Common Misconceptions in Pennsylvania Family Law

Kids don’t decide custody, and fault doesn’t matter in marital asset distribution

By Judy Malmon, J.D. | Reviewed by Canaan Suitt, J.D. | Last updated on December 11, 2023 Featuring practical insights from contributing attorney Elizabeth Jean Billies

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Divorce is ubiquitous. Many of us know someone who’s been through the divorce process or have personally experienced divorce. Stories of divorce are on TV, social media, the internet—nearly everywhere you look.

Despite this, there remain a surprising number of misconceptions about divorce, parental rights, and family court, from how parenting plans are decided to child support and who gets custody of the child.

What you think you know about divorce isn’t necessarily true.

Common Misconception 1: Kids’ Decision-Making Role in Child Custody Cases

Lansdale family law attorney Elizabeth Billies, of Dischell Bartle Dooley, says that one of the most common errors she encounters surrounds the physical custody of minor children. There is the belief that older children over a certain age (usually 12 or 14) can decide their own custody arrangement. “I have so many people that come in and say, ‘My kid can decide where they want to live.’ And I have to tell them, ‘No, that is not what the law says.’”

Pennsylvania child custody law outlines 16 factors that go into a judicial determination of custody rights based on finding what would be in the well-being and best interest of the child. Within these factors is one that takes into account a child’s “well-reasoned preference.” However, the child’s wishes are only one factor in a custody case. This factor is not dispositive in itself, and it’s considered in light of their maturity and judgment.

When it comes time to divide up assets, I tell my clients to look at it as a dissolution of a business. It’s a business transaction. That makes the emotional piece really different.

Elizabeth Jean Billies

An Example of When Children’s Best Interests and Preferences Clash

Billies shares a story from early in her career to illustrate the rationale behind this custody decision law and some custody court orders:

“In one memorable case I worked on, the girl was 15 or 16, back when Myspace was popular. The dad lived out of state, and he found evidence in his daughter’s Myspace postings that she was hanging out with guys who were 19 years old and drinking. They showed in the custody trial that mom was trying to act like a friend, not like a parent, and exercising poor judgment. In that case, custody was transferred to the dad, and the child had to move. Obviously, that was not the child’s preference, but it was in her best interest and is an example of why preference can’t rule the day. Because why should a 12-year-old know what’s best for them?”

Common Misconception 2: Asset Distribution in a No-Fault Divorce

Another common misconception Billies sees regularly has to do with property distribution under no-fault divorce. “People think if someone cheated on them, abused them, was not good with money, that should really count for something in the division of property. And it just doesn’t.”

In a no-fault divorce, there is no examination of the parties’ behavior related to the dissolution of their marriage. “When it comes time to divide up assets, I tell my clients to look at it as a dissolution of a business,” says Billies. “It’s a business transaction. That makes the emotional piece really different.”

Billies recommends working on emotional issues with a therapist or friend while keeping the legal end of things more practical. This also helps keep the legal bill down, as fighting with your ex through your lawyer can be very costly.

Pennsylvania is an equitable distribution state, meaning that property between divorcing spouses is not divided evenly in half but apportioned according to what a judge considers fair in light of factors such as:

  • The relative income of each spouse;
  • Anticipated retirement income of each;
  • Duration of the marriage; and
  • Other factors deemed relevant (but not fault-related behavior).

Assets owned before marriage, gifts, or inheritances are generally not part of the marital estate.

Find an Experienced Family Law Attorney

Prevalent misinformation can leave you with incorrect assumptions about your divorce or custody situation. Talk to an experienced family law attorney to ensure you have the best information and legal advice. 

For more information on this area, including see our overviews of family law, divorce, and mediation and collaborative law.

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