I spend a lot of time writing about how things typically progress in a “normal” divorce where husband and wife are two relatively reasonable, rational people. They usually want their divorce to proceed quickly and efficiently, with as few legal hiccups as possible. Their chief concerns are dividing the kids and the money, and, though we may have several serious disagreements, at the end of the day both parties know that it’s easier to agree together than it is to fight it out in court. So, we draft separation agreements and hold settlement conferences, sometimes even with a retired judge to help give us an idea of what the court might find if the case went to court, and we negotiate. Sometimes it takes a couple of drafts, sometimes we’re afraid that we may actually have to go to court over one issue or another, but eventually the tension diffuses, everyone relaxes, they start to see a new future for themselves on the horizon, documents get signed and the divorce gets finalized. That’s normal.
Of course, not every divorce is normal. At the beginning of the divorce process, almost every woman is convinced that her divorce is somehow different from everyone else’s divorce. That feeling mostly comes from fear, and from feeling up against a wall from dealing with an increasingly more difficult husband. It’s the “it’s just my luck” feeling that leaves these women convinced that, if any divorce is going to be a miserable, knock down drag out fight, it will be their divorce. Fortunately, in most cases, this feeling is unwarranted. Things start out feeling tense and mistrustful, but over time things calm down and negotiation becomes possible.
So, how do you know whether your divorce is normal or not? At the beginning, it can be difficult to tell. They all seem difficult.
For me, as an attorney, when I meet with a client I try to gauge how difficult I think her case might be based on the information she gives me. Sometimes I’m right, and sometimes I’m wrong. After all, when I'm trying to figure it all out at first, I’ve only met the wife. I don’t know much about the husband or how he’s feeling and, just as important, I don’t know who he hired to be his attorney. Or whether he maybe hasn’t hired an attorney at all. Sometimes, the unknowns can make something that I thought was easy turn into something that is actually much more difficult, and vice versa.
Before I go into a detailed analysis of red flags I see in divorce, I want to say that I don’t tell you this to make you worry. I tell you this to give you a way of telling what’s normal from what’s not, so that you can ask for help before it’s too late. Or, even better, to tell you, before you get nervous, that your divorce really doesn't bring up any of these red flags. There are some things that happen that happen in almost every case that cause a big flare up and then die down, though I’m sure that, for the parties involved, it feels like the end of the world at the time. There are other things that happen that do make me a little bit concerned.
If one of the red flag situations has reared its ugly head in your divorce, don’t panic. That’s what attorneys are here for! We deal with divorce on a daily basis, and can help you navigate successfully through these tricky waters. I tell you these red flags so that you can tell what really matters from what doesn’t, and enlist the appropriate level of help for your specific situation.
Really, though, don’t panic.
In this article, I’ve compiled a list of 5 red flags that I see in Virginia divorces.
1. Divorce Red Flag #1: He refuses to hire an attorney.
People who don’t hire attorneys make attorneys nervous and give us lots of headaches. They’re really some of the worst people in the world to have to deal with during an already difficult time. You’re probably thinking, “What’s the big deal? If he doesn’t have an attorney, we should be able to make quick work of him!”
That’s exactly the problem. Lawyers are governed by a very, very strict set of ethical rules that restrict a lot of the things we’re allowed to do. The rules were designed to keep us honest, protect our clients’ rights, and make sure that we don’t take advantage of people in a weaker position (people like an unrepresented husband). Because of these rules, we are limited in how we can deal with unrepresented parties and, in our heads, it really just sounds like a malpractice lawsuit waiting to happen.
Not only that, but it’s difficult to negotiate with someone who has no knowledge of the law whatsoever. Unrepresented people tend to focus on what they think is fair, and argue for that. Sometimes, though, (in fact, in my experience, lots of times) the law really isn’t concerned with what’s fair. The law is the law, and explaining that to someone without an attorney can be difficult. Explaining it to someone while you’re trying to follow the ethical rules (which don’t allow us to give him anything that might remotely be construed as legal advice) is even more complicated. If we tell him that the law guarantees you a certain percentage of his retirement and that is not a point we will negotiate on, will he consider that a threat? If I explain too much about the process to him, will he consider that legal advice?
If neither of you have attorneys, you’re definitely not any better off, unless you have some way of consulting with an attorney or mediator to help move your case forward. If this happens to you, what should you do? Encourage him to hire his own attorney. In an ideal world, both parties are represented by counsel.
2. Divorce Red Flag #2: He refuses to sign anything.
When you settle a divorce, you do it by signing something called a separation agreement, which is a legal contract between the two of you that divides the rights and responsibilities in the marriage. It may sound obvious, but I’m going to say it anyway: a contract isn’t valid unless it has been signed by both people. You can’t make him sign.
You can write (or have an attorney write) a beautiful agreement that clearly discusses how everything is going to be divided. You can write some things in his favor, especially if you think those things will be real sticking points for him. You can negotiate with him until you’re blue in the face, but you absolutely, positively can not force him to sign something.
If this happens to you, what should you do? If he’s refusing to sign, it’s best not to spend too much time and money trying to negotiate. Whether you’d like to settle your divorce or not, if he won’t sign you’re going to have to actually file for divorce in your local circuit court. You may be consumed with desire to keep your divorce out of the courts, but the bottom line is that, if he just won’t sign, you’re going to have to go to court if you still want to get divorced.
3. Divorce Red Flag #3: Either you or he are consumed with the desire for “justice.”
This can happen on both sides of the case, and it happens normally when there’s fault on one side or the other. It doesn’t really matter what kind of fault. It could be anything, whether its something that the statute specifically recognizes as fault (like adultery, sodomy, buggery, cruelty, apprehension of bodily hurt, desertion, abandonment, or felony conviction), or whether it’s just general bad behavior that ultimately led to the breakdown of the marriage, if either of you is really, really angry it’s probably going to be a problem.
Angry people usually say they want “justice,” and, in my experience, they’ll stop at nothing to get it. No matter how much it costs, no matter what the risk, these people are so determined to teach someone else the error of her ways that things get messy really quickly.
It’s understandable that one or both of you feels this way. Divorce is, by its very nature, a very emotional experience. In a lot of cases, there is the sense that someone else did you wrong, and it’s hard not to feel angry and resentful over the life you lost that you thought you’d always have. There’s a normal level of anger and resentfulness that many of my clients feel, but when it rises above that level, it triggers a red flag in my mind.
If this happens to you, what should you do? If you’re the one who feels the need for justice, it might be time to enlist the support of a therapist. A quest for justice isn’t really going to be productive. The more concerned you are about an outcome being what’s right or wrong or fair, the more money and time you’ll spend, ultimately achieving almost exactly the same result (except that you’ll have less money left because you’ve spent it fighting). Talk to someone (trust me, it really doesn’t mean that there’s something wrong with you) about how to effectively deal with the feelings you’re having. It’s much more productive.
If it’s your husband, on the other hand, you’ll definitely want to talk to your attorney about this as early as possible. Indicate your concerns, and try to plot a divorce course that will help you avoid spending extra money dealing with your husband’s anger. In the meantime, don’t retaliate with your own anger, either.
4. Divorce Red Flag #4: Either you or he say, “It’s not ____ that matters, it’s the principle.”
This red flag is along the same lines as the earlier point about seeking justice in the course of your divorce. I hear it all the time, “It’s not about the silver spoons, it’s about the principle! They were a wedding present from my great great aunt Belinda, and so I think…” Whatever. The fact of the matter here is that principles are expensive. If you’re resisting something just to teach him a lesson or show him how his behavior and thought processes are ultimately flawed, you’re wasting your time and money.
And vice versa, of course. If he’s fighting you over the principle of some issue or another, it’s likely to be unproductive. If this happens to you, what should you do? Well, along the same lines as earlier, it’s best for you (if you’re the one who is worried about the principle) to take a step back and ask yourself how much it’s worth, in dollars, to continue to fight over something for the principle. Ask yourself whether you’d prefer to have more money left over after your divorce (and more time, because you accomplished your divorce more quickly), or whether it really is worth the fight. Only you can really make that decision.
If it’s him, again, you’ll want to talk to your attorney as soon as possible. Consider the alternatives. Can you give up on whatever it is that is driving him to fight over the principle? Or is it truly important? Go over your alternatives with your attorney, and discuss how you can keep your end goals in mind.
5. Divorce Red Flag #5: You absolutely, positively cannot agree about custody.
Custody is always very emotionally charged, but some cases are worse than others. In some cases, neither parent can envision an alternative situation other than the one that gives them custody of the kids all the time without the other parent having any right to interfere.
Sure, it’s difficult, and it’s understandable. The dynamics are shifting in a way that makes you very uncomfortable. Even though the two of you presumably collaborated to some extent before, you never felt like there was some mandate that the children spend a specific amount of time with their father, and you weren’t concerned about running every decision you made by him before you made it.
No matter who is being the most difficult with respect to custody (really, it’s irrelevant), both of you are going to have to come to terms with the fact that you will have to share your children. The trend in custody cases that we’re seeing is that, in cases where both parents fight for custody, the judge awards something very close to shared custody. That’s not a guarantee, of course, but it’s something to be aware of. Fighting is futile. For more information on recent custody cases, click here. What should you do if this happens to you? Start to consider alternative custody arrangements that you can live with.
If you keep these red flags in mind at the beginning of your divorce and try to work with your attorney to resolve or avoid them, there’s a very good chance that your divorce will run a much, much smoother course. For more information, or to schedule a confidential appointment with one of our divorce and custody attorneys, give our office a call at (757) 425-5200.