10 Things You Don’t Know About Divorce: Part 2

If you saw Wednesday’s post on the first five things you need to know about divorce cases (that you don’t already know), you’ll want to keep reading here for the last five points. Divorce cases are complex and can be confusing, especially if you don’t have a background in the law—and most people don’t. Still, it’s a good idea to do all the research you can ahead of time, to find out what questions you should be asking and where the normal hang ups are, so that you don’t accidentally make a mistake just because you weren’t sure what was supposed to be happening.

Not all divorces are the same, even though most divorces typically follow the same basic path, so you should feel comfortable, at any point in the process, asking what the alternatives are and why the attorney is choosing a specific course of action. It may be that your attorney is doing something in a way that seems clunky and inefficient to you because the court requires that the attorney do it that way. Just knowing that this or that is required by the court (or by the statute) can go a long way towards helping you understand the divorce process in Virginia, and help you be able to differentiate between what’s normal and what’s not.

Ask a lot of questions, read this article, and be sure to go back to check out Wednesday’s article, too.

6. It’s a bargaining process, even if we’re in court.

There are very few things that are more or less guaranteed. Pretty much everything else is up for negotiation. Even if your case is looking like it’s headed for court, you’ll have to follow a number of procedural steps before you get there. The court’s docket is really backed up all the time, so it’s not like you can just set a trial date and be done with it in a couple of weeks, or even a couple of months. Not only that, but most courts require that you do things like attend mediation or have a judicial settlement conference before you can even show up on trial day. All of these things are designed to help facilitate settlement.

Why? Well, in general, people who have control over the outcome of their own case are much happier. They may have a hard time coming to an agreement, but the court feels that they really are best suited to handle these things themselves. Besides, the court’s docket is so backed up that the judge wants to get to things that can’t be settled out of court. Anything that can lightens the work load a little bit and makes it easier for everyone.

Even if you’ve got a court date, it’s likely that you’ll try to settle beforehand. In the days before court, lots of letters and telephone calls are likely between you and your attorney, and your attorney and opposing counsel. It’s also really common that cases are resolved “on the courthouse steps.” (Obviously, they aren’t literally settled on the steps; it’s just an expression that means that cases are often settled before you even go in and see the judge.) Be prepared to negotiate, even up to the 99th hour.

7. Judges don’t care, and you won’t feel like you’ve gotten your day in court.

This one also ties in with the last factor. You probably will settle, in all likelihood, because of the way the system is set up. It encourages you to talk to your husband prior to your court case and, in some cases, even required it. Your attorney will be promoting settlement, too. Unbeknownst to you, you really do WANT to settle. Why? Because the judge doesn’t really care.

A lot of people seem to think that the judge will carefully listen to them as they re-hash every issue they had in their marriage, see the truth, and make an award that reflects what, in their opinion, should happen. They seem to think that they deserve to have “their day in court,” and that the judge will automatically side with them when they see what a selfish, uncaring jerk your husband has been. Unfortunately, that’s really not the case.

Judges don’t really care all that much, and usually they’re not huge fans of domestic relations cases. They don’t want to hear you and your husband hurl insults at each other across the courtroom, or listen to long, drawn out testimony that demonstrates over and over the extent of your victimization. To most judges, a divorce is a business transaction. It is simply something that needs to be divided equitably, and then the people involved need to go on their way and start over. I’ve heard a judge tell a couple (and I’m paraphrasing here) that they had two choices, either they reached an agreement together about how something was going to be divided, or the judge would sell it at auction and divide the proceeds. He admitted they’d get less if they did it his way, but left the decision up to them. (They decided, wisely, to divide it themselves.)

Don’t get caught up in thinking that this process is about determining right from wrong, between labeling someone as a good guy and someone as a bad guy. It’s really not. A divorce is a legal proceeding where all of the marital assets, liabilities, and responsibilities are divided, according to a complex weighing of factors. You have the most freedom and the greatest likelihood of success if you negotiate something with your soon-to-be ex, rather than fighting it out in court. For the record, here’s how I define “success” when it comes to divorce: when the parties are able to get divorced, and have the maximum amount of their money left over for themselves at the end of the process.

Of course, I’m not saying that you should roll over and play dead, either. You should be an active participant in the negotiations, and you should discuss your goals and priorities with your attorney ahead of time. Your husband shouldn’t bulldoze you, but you shouldn’t go into this with the mindset that the judge will see how horrible your husband truly is and that he will make his award accordingly. Chances are, he won’t. Chances are, he doesn’t really care. Chances are, you both will end up looking like jerks in that courtroom. You won’t feel validated, you won’t feel relief, and you’ll have less money left to start over than you would’ve if you had signed an agreement. Find a common ground between fighting tooth and nail and being bulldozed. Trust me, there is one.

8. Once you sign, you can’t un-sign.

You should take signing a separation agreement, or any legal document, very, very seriously. Once you sign something, it probably can’t be un-signed. Simply saying that you didn’t understand, that your husband forced you, or that you didn’t read the document before you signed will not get you out of it. The court assumes that you’re of age, you’re sane, and you’re responsible for your own choices and the consequences that stem from them.

You should always, always, always read a legal document before you sign it. Ask questions. Make sure you understand. Have another professional, like a CPA or a tax adviser, look over the document and give you an idea of any unintended consequences of your agreement. In short, you should read it, understand it, and love it before you sign it.

Courts don’t overturn agreements. Why? Well, because, if they did, people everywhere would be sitting around wondering whether every agreement they ever signed was safe. They would wonder whether something that they bargained for would be suddenly ripped away from them. They would wonder whether there’s really any fairness, any stability, any guarantees worth bargaining for, and it would undermine the whole system.

Judges love when people are able to reach an agreement themselves, because it means less unhappy people looking for a result that will make them unhappy sitting in their courtrooms day after day. It means more time for golf, more time for writing scholarly articles, more time for the gym or, really, whatever judges do when they’re not being judges. It means happiness and stability.

You won’t be happy, though, if you sign an agreement too quickly, without reading it, or without considering any other effects of your agreement. Some attorneys try to get agreements overturned, but most of these efforts cost a lot of money and yield no results. So, before you sign, be aware. Read it, understand it, love it. Seriously.

9. Adultery is risky, and it’s a crime, even if you’re separated.

Whether you’re separated or still married, adultery is a crime. In Virginia, it’s a misdemeanor, and, even though it’s rarely prosecuted, you should be aware.

There is a difference between pre and post separation adultery in divorce proceedings, though you should definitely still be incredibly careful. With pre separation adultery, the court assumes that the adultery is the reason for the breakdown of the marriage. Because of this, you could risk (at least theoretically) receiving a smaller portion of the marital assets as a result of your infidelity. (Please note that I say “theoretically,” because, in most cases, adultery does NOT factor into property distribution, but you should be aware that it could.)

Post separation adultery is not usually thought to be the reason for the breakdown of the marriage, but its still a crime and could still affect property distribution. While unlikely, it’s still a risk that you take.

My advice? Wait until after your divorce is finalized before you start dating.

10. Taxes and divorce.

Most family law attorneys are super uncomfortable giving any kind of information at all about taxes. We’re not, with very few exceptions, tax attorneys. Tax is a complicated, constantly changing, and nuanced area of the law, and we don’t want to give you any kind of information that may not be as effective as if it came from someone who is truly experienced in that area of law.

Because we aren’t really equipped to give tax advice, we usually encourage our clients to talk specifically to a tax attorney or CPA before signing an agreement to make sure that there are no unintended financial consequences that we aren’t aware of. It’s definitely a good idea to do this, because your separation agreement can contain provisions that affect more things than you’d expect. Especially as far as taxes go, you’ll want to make sure that any assets you either keep or allow your husband to keep don’t negatively impact you later—or just surprise you. It’s best if you talk to a professional that exclusively practices this area of law, or talk to another professional (even if he or she isn’t an attorney) who will help give you feedback on any consequences of your agreement that might not be immediately obvious to you.

Since I’m not a tax attorney, I don’t like to give tax advice, but I do know 4 things about tax that I’m comfortable telling you.

• Spousal support is taxable income.

Yes, that’s right. Any spousal support your husband pays you is income to you, so you’ll have to claim it on your tax return and pay taxes on it. It’s also tax deductible to your husband, so if you were thinking about innocently just not claiming your spousal support as income, you’re likely to get caught, because you can bet that your husband is going to enter the spousal support he paid for the deduction. You should set aside a portion of your spousal support income during the year so that you are able to pay taxes on it later.

• Child support is not income, nor is it taxable.

Child support is the opposite of spousal support. It doesn’t count as income to you, and it’s not tax deductible to the person paying it. No need to set any money aside.

• Double deductions are a no-no.

Your husband can’t pay the mortgage as your spousal support and then deduct both the spousal support and the mortgage interest. If he is paying the mortgage, he gets credit for paying the spousal support, which he can deduct for. But you get credit for the mortgage interest deduction, and you should be sure to claim it. (Think about it: he can’t get TWO deductions from ONE payment to you.) In these types of cases, it’s like he pays you the cash, and then you turn around and pay the mortgage with it. It’s your money, even if he pays it directly to the mortgage company. So, he gets the deduction for spousal support, and you get the deduction for the mortgage interest. It’s a win-win.

• Money that you receive as part of your divorce settlement is not income.

If you receive, for example, $100,000 as your share in the equity of your home after it is sold, that is not income to you, and you don’t have to claim it on your tax return, but you should always feel free to talk to a tax professional or CPA about your specific case.

Now you should feel like you know a lot more about Virginia divorce cases! Hopefully, you feel prepared enough to ask the right questions, hire the right attorney, and get a good result. Call our office at (757) 425-5200 if you’re ready to take the next steps!

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