Question: My husband and I are separating. He’s verbally and emotionally abusive, and I can’t take it anymore. After I told him it was over, he told me he was going to leave the apartment we’re renting and I’d have to “figure it out.” I’ve been a stay at home mom and he knows I can’t get a job yet; our daughter doesn’t start kindergarten until August. Can he do this? What are my options?
I do have some advice for you if you find yourself in this situation, but – first – I want you to sit down, because I don’t think you are going to like all of it. One of the hardest parts of my job is giving people advice they don’t want to hear and I do think that at least some of this is going to fall into that category.
Can he just walk out on me – and our lease?
There’s nothing an attorney or a judge can do to prevent him from walking out; people make their own choices in life. That doesn’t mean, though, that there are no consequences for these choices.
To find out what the specific consequences would be if you broke your lease, one of the first things you should do is look to the black and white provisions contained in your lease. If he does leave, maybe even talk to your landlord directly so that you can figure out a plan moving forward.
If you are a victim of domestic violence, you could break your lease yourself – with no penalty. There is a a specific Virginia code provision that deals with it, but there’s also a national domestic violence hotline that can help you sort through your options.
But, either way, the plan moving forward – unless you have family locally that you can move in with – is going to involve you having some money. Rent isn’t free so, if you can’t shift to be able to cover the rent payment yourself (more on this in a minute), you may need to move out, too. Consider that, especially if you need to rent your next place, you also won’t want to have an eviction on your record.
What are my separation and divorce options?
Because you mentioned specifically that he is both verbally and emotionally abusive, I’ll tell you about fault-based divorce in Virginia. Though I don’t think you can finalize your divorce using verbal and/or emotional abuse – you’d need evidence of physical abuse to use cruelty or apprehension of bodily hurt as your grounds to finalize your divorce – you do have enough to file for divorce using these grounds.
This is important strategically because, once you file, you can schedule a pendente lite hearing. Pendente lite is Latin for ‘while the litigation is pending,’ and it’s a temporary support hearing where you can get temporary child custody, child support, and – if appropriate – spousal support awarded.
You’re definitely going to need child and spousal support to get back on your feet or to make rent. But let’s talk some more about this.
How much child and spousal support can I expect?
It’s a good idea to talk to a lawyer who can discuss your divorce options with you and run guideline calculations for both child and spousal support.
One piece of advice I’d give you, though, is that it is going to be much easier to determine your child support if you – and this is the part that I think is going to be hard to hear – find a job and get your child a spot in a daycare. Work related childcare expenses go into the formula and these will have a significant impact on the amount of child support you receive.
You’ll need pay, too. The court can’t force you to go back to work, but it’s a necessary reality for many (if not most or even all) stay at home moms. Child and spousal support are not designed to support you and your child entirely; you should not expect that the guidelines will be generous enough to allow you to live off of them entirely. Knowing what your income will be and how much your childcare will cost will help tremendously and will keep you from having to go back and forth to court multiple times for modifications over the next few months. (It’ll also mean that you have support in place when you need to start paying for the childcare – a crucial first step for many former SAHMs.)
But I don’t want to go back to work; my child isn’t in Kindergarten yet.
I do think that the reality is that life will be infinitely easier if you do. If you don’t, that’s certainly your choice – but maybe don’t make any hard and fast decisions until you have a chance to sit down with an attorney and run guideline child and spousal support calculations.
This might be an easier choice if you have family support, but – almost no matter what – it is hard in the short term. The more information you have, and the more accurate you can make those initial child and spousal support calculations, the better off you’ll be.
The court can’t force you to work, but – depending on the circumstances – you should know that it is possible for the court to impute income to you. That’s a bit outside the scope of this article, but I wanted to make you aware of the possibility and to link you with an article that will help you understand the risk factor here better.
Do I have to use fault-based grounds for divorce?
No – Virginia has both fault and no fault grounds for divorce. The reason I said fault at first is specifically because you mentioned his fault as the driving factor behind your divorce; also, I mention it because filing on fault will allow you to get into court sooner and have that pendente lite hearing.
I don’t think you can finalize your divorce using these grounds – without more – but that doesn’t mean that there isn’t a strategic benefit to doing so, at least in the short term. An attorney who is pursuing a divorce on fault based grounds will likely charge you more for a retainer than an attorney who is pursing no fault grounds, but if you go the no fault route you won’t be able to have a pendente lite hearing until you’ve been separated for a year (because your grounds are satisfied by your period of legal separation).
For most people, waiting a year is an untenable situation – especially if he’s already not agreeable. To figure out what’s going on with your lease, to establish support, and to begin the divorce process, filing on fault is probably one of the quickest ways to achieve your goals.
Chances are, though, that your divorce will eventually be switched over to no fault; hopefully, you’ll even reach an agreement. Fault-based divorces – and, really, litigation of all kinds – are extremely difficult to pursue. It’s often hard for SAHMs to afford representation which is another reason that I suggest that you get a job now, rather than later. Despite what you may have had planned for your daughter’s childhood before now, the plans have changed – and you may have to change to best meet the challenges your circumstances now require.
What will this cost?
Usually, retaining an attorney on fault-based grounds involves a retainer of $5,000+, but this may range depending on the attorney’s experience and the specific facts involved in the case.
Keep in mind that, when we’re talking about retainers, we’re not talking about flat fees; it’s just an amount of money that must be prepaid for the attorney to take the case. The specifics of the representation will be detailed in a contract called a retainer agreement; much like your lease, this sets forth the specific terms that will govern your relationship with your attorney.
Most family law attorneys work on retainers, which means that they take money up front, put it into an escrow account in your name, and then bill from it as work is done. We generally bill at a certain hourly rate in increments of 0.1 of an hour depending on how long it takes to get something done.
If your case is litigated, it will likely cost more; uncontested cases (where an agreement is eventually reached) tend to cost less. The specifics, though, depend on the unique qualities of your case, so it can be hard to estimate up front.
You don’t have to hire an attorney, but it would be difficult to navigate without one. For more information, register for our upcoming divorce seminar, request a divorce book for Virginia women, or read more blogs like this on our website at hoflaw.com.