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Urban legends about family law: think men don't get custody? Think they don't get maintenance? Think again.

Not only clients but even some lawyers believe the urban legends about family law. Let's set the record straight.

Men don't get custody. Forty or 50 years ago it was routine that the mother was awarded custody and the father received visitation. The old law had a bias in favor of mothers as custodians called the "tender years doctrine," under which it was presumed that mothers were better suited to raise young children.

A reaction to the women's movement of the 1960s was that child custody law officially became gender neutral. Mothers still receive custody of the children in the majority of cases, but this is because they are usually the primary caretakers of the children. When, however, the father is the primary caretaker, he will obtain custody.

My observation and experience is that in the majority of contested child custody trials the father wins. This is probably because of the great expense of a child custody case; the father will not take it to trial unless he has decent odds.

Men don't get child support. Yes, they do. If a man gets custody, even if he has a larger income than the mother, he will get child support. If, however, there is a great disparity in incomes, the mother may get a break and not be required to pay the full statutory amount of child support (e.g., 20 percent of net income for one child).

Men don't get alimony (maintenance). Yes, they do, if it's a long-term marriage and the wife's income is substantially greater than the husband's.

Most people hide income and assets when divorcing. Yes, it happens, but not usually. In divorce we frequently see good people at their worst. They regard a financial settlement in a divorce as do or die. The majority of divorcing people, however, are honest about their assets and income.

It's cheaper to have one lawyer for a divorce. Yes, it is cheaper in the way of attorney fees, but one party will usually get the short end of the stick. While the parties may be under the impression that the lawyer is representing both of them, if they look carefully at the papers, they will see that the lawyer is representing only one.

It is cheaper to have one mediator than two lawyers. I have a bias about mediation. The goal of mediators is to settle the case and the easy way to settle the case is to side with the stronger party.

H. Joseph Gitlin practices family law in Woodstock and is the author of Gitlin on Divorce: A Guide to Illinois Matrimonial Law (LexisNexis). He is a laureate of the Academy of Illinois Lawyers.
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Title Annotation:Illinois
Author:Gitlin, H. Joseph
Publication:Illinois Bar Journal
Date:Oct 1, 2009
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