10 Things You DON’T Want to Hear in a Virginia Divorce or Custody Case

Posted on Sep 9, 2016 by Katie Carter

Sometimes, my job isn’t fun, because sometimes I have to tell people things that they don’t want to hear. I like to give only good answers that make people (women specifically) feel happy and hopeful. That isn’t always possible, though. Sometimes, there aren’t great, exciting, happy, hopeful answers to give. And part of me doing my job means that I’m giving people reasonable expectations. It means that I’m not setting people up for failure later. It means telling them what the law is, and how I expect it would be applied in their case. It means giving honest, truthful answers, so that my clients (and my prospective clients) can make reasonable decisions regarding their future. It means arming them with the information they need, so that they can make good decisions about how their money is spent and the choices that they will be making.
Today, we’re going to talk about the 10 things that I sometimes have to tell clients (or prospective clients) that they really don’t want to hear. In no particular order, here are 10 things that I hate to have to tell people—and that people really hate to hear.

1. Relocation is not easy. In fact, it’s darn near impossible.

If there are kids involved, you’re going to have a hard time relocating after your final divorce decree is entered.
If you don’t have kids, you can move. Move wherever you want, whenever you want—but make sure that at least one of you stays in Virginia until the final divorce decree is entered, for jurisdictional purposes. These days, you don’t often have to go to court to finalize things, but you will (or, at least, one of you will) need to live here to qualify to be divorced by our courts here. That’s a minor point, though—the real point is that you will be free to relocate without restriction after your divorce is granted.
With kids, though, things are different. Relocation (if your child’s father plans to stay in the area) is virtually impossible without his approval and consent. You may spend a lot of money in legal fees trying to get there, but understand ahead of time (if you choose to move forward with a relocation case) that you may not get what you want. In fact, you probably won’t.

2. Sexual abuse allegations require proof.

Sexual abuse is hard. In fact, it’s one of the absolute hardest types of custody cases to win.
Judges are jaded—you should know that from the outset. They’ve seen moms use sexual abuse allegations as a way to get custody from their child’s father. Maybe it used to work, but, at some point, judges got wiser, and now pretty incontrovertible proof is required in order to use sexual abuse as your grounds for getting custody for yourself (and keeping it from your child’s father).
The court won’t just take custody from him preemptively; it just doesn’t work that way. Think about how, if the roles were reversed, you would feel if custody was taken from you because you might have done something. It doesn’t work that way. To lose custody, sexual abuse must be proven. And, if you push the envelope too much, you risk losing custody yourself. Why? Well, like I said, the court is jaded.

So, if you pursue a custody case arguing sexual abuse without proof, you’re going to look like you’re being malicious and trying to keep the kids away from dad. It’s a hard conversation to have with a mom, but our general principle is that if you can’t prove it, you shouldn’t mention it—because it’s so risky to your case.

3. You can’t file on a fault based ground after you’ve negotiated a separation agreement, even if you find out something has changed.

The whole point of a signed separation agreement is to avoid filing on fault and litigating your divorce. Just because the situation changes later (see my blog on Monday ) doesn’t mean that you can change your entire tune.
Most separation agreements include a provision that disallows filing on fault later. Even if your agreement doesn’t include a provision like that, though, you’ll find that you really can’t file on fault after your agreement has been signed.
What’ll happen? You’ll file, and go to court—only to have your husband (or his attorney if he’s represented by counsel) will stand up and say that you’ve already negotiated an agreement that handles how everything will be divided in the divorce. Now that you’ve signed a legal contract, you’ll be held to it. Courts don’t just overturn agreements and, since you’ve signed an agreement, you can’t ALSO pursue a fault based divorce. A fault based divorce must be litigated in court anyway; you can’t stipulate to fault based grounds. A judge must find that the grounds for a fault based divorce exist, and that can’t happen if you’ve already signed an agreement.
And why would you want it to? Even if you feel like you’ve been cheated, you’ll get divorced faster ad more cheaply moving forward with an uncontested, no fault divorce. You’ll spend more money—and for worse results—if you litigate. (Why? Because you’ll spend more money to divide less.)

4. You can’t un-sign a separation agreement later.

Your agreement is going to be upheld. It just is. It’s a good idea to just go ahead and accept that, rather than wasting time and money consulting with attorneys to hear that, in fact, your agreement IS good.
So, be careful what you sign. Be sure you’ve read, understand, and agree.

5. Fault based divorce will likely be incredibly expensive, no matter what he has done to you.

When you go to court on a fault based divorce, you have to litigate two things: (1) your grounds (to prove to the judge that your grounds exist), and (2) how your assets and liabilities will be divided.
It’s time consuming, and it’s expensive. If your divorce goes all the way through to a trial, you’ll likely spend at least $20,000—each. And it’s certainly possible, depending on the issues, that you could spend more.
Is it really something you want to pursue? Consult with an attorney to be sure, but also view point number 2 above (the last line): you’ll spend more money to divide less.
It doesn’t really matter what he has done, either. The judge isn’t going to punish him more because of what has happened. Though technically it’s possible, it really almost never happens.

6. You won’t be able to get him to pay ALL of your attorney’s fees.

The way the judge sees it, each party is responsible for their own attorney’s fees. You hired an attorney. You knew the expense. You are responsible, in short, for being sure that you hire someone you can afford to pay to represent you. You can’t hire a super expensive attorney and then force him to pay for it later.
It seems unfair, but that’s how the law sees it. You will likely be responsible for all of your attorney’s fees. If you do get fees awarded by the court, it’ll be for a smaller amount, and usually because he has done something wrong (like repeatedly not responding to discovery requests).

7. There’s really no such thing as pro bono—at least, not when you’re thinking that it means taking your case from start to finish for free.

I don’t know of a single attorney who will take an entire case on for free. I know lots of attorneys who do things that are helpful—like teach a seminar or review a document. But, even then, that’s only going to get you so far.
Attorneys really don’t take on entire cases pro bono.

8. If you’re litigating custody, you may end up with shared custody.

There’s more and more shared custody awarded all the time. Though it’s probably safe to say that most people reach an agreement with respect to custody, there are plenty of people who don’t. And, for the people who don’t, they litigate custody. When you litigate, especially when both parents are generally good (though certainly somewhat flawed) people, shared custody is more and more often awarded all the time.
Shared custody doesn’t mean custody is automatically split 50/50, though it can mean that. Technically, shared custody is anything where the non-custodial parent has 90 or more overnights in a calendar year. So, to fall under shared custody, a non custodial parent could have the child 90 days in a year—or 182.5 days in a year. Shared custody arrangements can fall anywhere within that spectrum.
Is that good news or bad news to you? I think it all depends, but you should know that we’re seeing more shared custody arrangements awarded by judges.

9. Supervised visitation is very rarely awarded.

Lots of moms want supervised visitation awarded, and for lots of different reasons. I often hear that they want it awarded because dad hasn’t really taken the initiative when it comes to the kids, and therefore isn’t well versed enough in what the kids need to really have visitation with them on his own.
Supervised visitation won’t be awarded for that reason. In fact, supervised visitation is only rarely awarded at all. Don’t walk into your attorney’s office thinking that you’re absolutely going to get it—because, chances are, you won’t. You should know that now.

10. In a custody case, moms don’t automatically have the upper hand.

I think that it used to be the case that moms had the upper hand. It’s not the case anymore. If anything, I think moms and dads have a pretty equal shot, and judges recognize the importance of a child having the ability to have a relationship with both mom and dad. (See the best interests of the child factors.)
These are the bad answers; the answers I hate give. There are lots of good things I can tell people, too, but I think it’s best to be upfront about the bad things, too, so that my clients can make the best decisions possible for themselves, their children, and their future.

These 10 things are important principles that you should definitely remember if you’re gearing up for a divorce or custody case in Virginia.  Make sure to keep them in mind!
For more information or to schedule an appointment with one of our attorneys, give our office a call at (757) 425-5200.