There’s a point in every divorce negotiation where we – sometimes me, sometimes my client, sometimes both of us together – wonder whether it’ll ever be possible to reach an agreement. It’s a hard thing to do and every single point can be contentious.
This is especially true when one party *really* doesn’t want the divorce. And, hey, that happens a lot. That’s not necessarily because they’re so desperately in love with their partner; more often, it’s because they’re benefitting too much from the marriage as-is to truly want it to end.
But that doesn’t mean that you’re stuck forever, even if he doesn’t want the divorce. It does mean, though, that things will likely be harder than they would be if you were both on the same page about the marriage ending.
So, what can you do if you’re both not on the same page about divorce?
You probably already know that there are only two ways to get a divorce in Virginia. Either you and your soon-to-be ex negotiate a signed separation agreement that divides all of your assets, liabilities, and responsibilities, or else you go to court and the judge decides. That’s it. There’s no other magic formula. Either you do it yourselves or the judge will.
And, spoiler? The judge isn’t going to be the best person for the job. Obviously, he knows you and your husband the least and he has the least stake in the end result. He’ll try to resolve things more or less equitably (or, maybe more accurately, in a way that feels unfair to both of you but leaves the judge unlikely to be reversed on appeal) and then just … move on. It’s not particularly time or cost effective and it doesn’t lead to the best results but, hey, it’s an option. If you and your ex can’t resolve things, there’s this lingering threat hanging over your head.
Most people – I don’t have exact statistics on it, but probably well within the 98-99% range – will ultimately reach an agreement. Divorce trials – full divorce trials where all the issues are resolved by a judge – are rare. (And thank goodness!)
Most people resolve things on their own, though the process from beginning to the ultimate resolution might look pretty different from one person to the next. But what can negotiation entail?
Can we just do it ourselves?
Sure! Many people handle their divorces themselves. Often, at least one has an attorney, but the parties will often go back and forth between themselves – without their attorneys present – to negotiate the finer points. This can be incredibly effective, especially if there’s no abuse involved. In a case where he has been violent or is aggressive and intimidating, you may not want to negotiate without an attorney present. But in many other cases, it can be a great way to resolve things to your mutual satisfaction without spending a ton in attorney’s fees.
I do recommend that you go to an attorney before – and likely after, too – to make sure you have an idea of your rights and entitlements under the law, and to ensure that the agreement is airtight before you sign. (Once you sign, you’ll have a very hard time un-signing, if that’s even possible at all, so be sure to get it right on the first try.)
I often have clients do this. I draft an agreement and they present it, talk to him, and then come back to me with revisions. I do often say to beware – especially if he doesn’t have an attorney – because you don’t want to go back and back and back on revisions that cost you money (while he’s invested nothing), just for him to say no and refuse to sign just when your trust account balance runs out … but it can be effective, too, so I don’t want to say, on the whole, that you shouldn’t do it. You just need to be aware of whether there’s true forward momentum or whether he’s just twiddling his thumbs and trying to outlast your trust account balance.
Do we both have to have lawyers?
No, not necessarily! Sometimes, a party will decide not to retain counsel, even if their soon-to-be ex has an attorney. That’s perfectly acceptable. You can represent yourself in negotiation or even in litigation in any divorce or child custody case in the Commonwealth. But be very clear on this point: your former spouse’s attorney does NOT represent you and cannot give you any legal advice at all.
One or both of you can have lawyers and neither of you could have a lawyer, but you are not able to share a lawyer.
Can we meet with our attorneys and hash out our agreement?
Yes! Oftentimes, negotiation is just letters or emails sent back and forth – especially if progress is being made that way – but sometimes we’ll all get together to hash out the details too.
We can have either a 4 way settlement conference (you might think of this as mediation) or a judicial settlement conference, which is presided over by a (usually) retired judge. The judge doesn’t render a decision; she (or he) just tries to keep settlement discussions moving in a forward direction.
Mediation, technically, is facilitated by a mediator (who may or may not be a lawyer), and there’s often just one mediator per divorcing couple. The mediator is not an attorney, is not there to give legal advice, to let you know what to expect if your case went to court, or to advocate for you. The mediator is just there to try to help you reach an agreement.
We can’t reach an agreement. Will we go to court now or keep trying?
Sometimes, negotiations fail and we end up filing for divorce so we can move the case through the court system. That doesn’t mean we give up on an agreement, though. Never! All throughout the process, whether we’re doing discovery, at pendente lite, in pre-trial motions, or even literally right “on the courthouse steps” (meaning in the very moments right before a court appearance), we are always trying to settle.
And “settling” isn’t a negative thing. Settling is ideal, because you and your soon-to-be ex are going to give more attention to your settlement than a judge; you and your soon-to-be ex know more about the assets, liabilities, and responsibilities, and are more in a position to define them. “Winning” or “losing,” even if there is such a thing, is relative in the sense that you both have a 50% that means more to you – so maximizing the things that are inherently valuable to you (and minimizing the things that are painful) is something that you are uniquely able to do, and certainly better able to do than a judge who knows relatively little about any given case.
Most cases settle – even cases that involve some (or even a lot of) litigation.
For more information, or to learn more about what to expect in your upcoming divorce case, give us a call, schedule a consultation, or request a copy of our free divorce book for Virginia moms.