If you’re still hoping to save your marriage, you’re not alone. In fact, that’s something I hear all the time. One thing that I think is universally true is that every single woman who decides to get a divorce has to do everything she feels she has to do in order to try to save her marriage first.
I’ve talked to women endlessly about marriage counseling, couples counseling, individual therapy, marital agreements, mandated date nights, “taking a break,” and all sorts of other measures designed to help save the marriage before ending it.
In some cases, those efforts are successful. In other cases, the parties end up divorcing.
As I’m sure you’re already aware, I have much, much more experience with the latter than the former. But that doesn’t have anything to do with YOU and what’s going to happen in your marriage. Anecdotal information about someone else’s relationship never has much of anything to do with you. (Incidentally, neither does anecdotal information about someone else’s divorce!)
Maybe you’ll save your marriage. You wouldn’t be the first – nor, I daresay, the last – to pull your marriage back from the brink. There is certainly hope and where there are two willing, loving, fundamentally decent people behind the marriage, there’s every chance in the world that you will be able to save it.
No one’s first choice is divorce, after all. But, then again, it happens. It happens kind of a lot. I don’t say that to scare you. Quite the opposite, actually. My goal is to assure you that, whatever comes, you’ll be okay. Divorce isn’t the end of the world, especially if you take the time to gather the information you need to understand your rights and entitlements.
Don’t misunderstand me: even though its not the literal end of the world, divorce is a big deal. If you have children in common, it’s huge. And if you have assets and/or debts, it’s even bigger. You need up-to-date, Virginia-specific information from a reputable source – not a random nameless, faceless stranger on social media.
So, hi. Welcome. I’m glad you’re here! And, if you’re a woman who may or may not be getting divorced in Virginia, I can help.
Ideally, there’s a lot you should know about separation and divorce, whether you’re able to reconcile or not. It will help inform you as you make big decisions over the coming days, weeks, and months about your life and how you want to live it. You’re smart to be gathering information and considering all of your options. After all, knowledge is power. The more information you have, the better your choices will be.
First thing’s first: separation.
In Virginia, a period of separation is required for all but one of the grounds of divorce you might choose to use, whether fault or no-fault based. In a case where you use adultery as your grounds of divorce, you – theoretically, at least – can get an immediate divorce, but chances are good that you will have to wait a minimum of a year, too.
In Virginia, you have to wait a year before you can finalize a divorce – whether fault or no fault – unless (1) you have a signed separation agreement, and (2) you have no minor children born or adopted to you during the marriage, so you qualify for a no fault divorce after six months of separation.
There’s not really a ‘legal’ separation in Virginia in the sense that you don’t go to court, file any forms, or need an attorney to be ‘officially’ separated. You are separated at the point where (1) one of you decides to end the marriage, and (2) you stop cohabitating. Cohabitation is a fancy legal word we use to describe living together as husband and wife. At the magical, mysterious point in time where those two things coincide, you are separated.
Second: The marital residence.
For most people, one of their biggest concerns is where they’ll live. For many, the home is one of the biggest assets involved in the divorce. It’s also one of the most immediate sources of significant liquidity – and that’s often important, especially in the early stages.
If you own a home together, you probably shouldn’t leave it. Technically speaking, if you leave the home, you could be guilty of desertion and/or abandonment, which is another of the fault-based grounds in Virginia. If you’re worried about your physical safety, or the safety of your children, you should look into either constructive desertion, if you’re going to leave the residence, or a protective order, which could force him out of the home.
Keep in mind that, if you leave (or if HE leaves), that doesn’t mean that you do not still have an ownership interest in the home that you purchased together. (Or, if you’re in a rental, that you don’t still have some liability on the lease that you signed together.)
In the divorce, which will be either decided by the judge in court or negotiated between the two of you in a signed separation agreement, you’ll agree to either (1) sell the home and split the proceeds, or (2) refinance and let one spouse buy the home and pay the other her share of the equity.
Keep in mind that whether keeping the home is a smart decision is a complicated one, especially in the current real estate market. Interest rates matter significantly, especially if you’re refinancing from a much lower one. Not only that, but maintaining a home solo can be a challenge. If you’re hoping to keep the home, it’s smart to still consider other options (whether owning or renting) and talk to a financial advisor to crunch the numbers – just to make sure that you’re not putting yourself in a potentially disadvantageous situation.
Whether you own or rent, you can’t kick each other out without an order from the court giving one of you exclusive possession. You can get exclusive possession either through a protective order action, if there’s domestic violence, or at a pendente lite hearing, if you’ve filed for divorce.
Third: Consult an attorney.
Maybe this isn’t the third step. I only put it third because I often find that it’s the third concern that women have. It’s important to know about separation and the marital residence, just for the sake of your own peace of mind. (Though, if you were super proactive, you could consult an attorney first.)
It’s always smart to consult with an attorney to get specific advice for your unique situation. In my years of practice, I’ve found that no two cases are EVER exactly the same, so you want to make sure that whatever you’ve heard or read is going to be accurate for you. You probably also want to come up with a specific plan of action that makes you feel empowered. Divorce can be scary, so having a little bit of extra confidence can go a long way.
For most attorneys, the first step is a consultation and, for family law attorneys, it’s usually a paid one. We’re not like personal injury or criminal lawyers; we generally don’t do free consultations. (Though you may find an odd attorney here or there who does one, most do not.) It really is a different kind of law and that informs how we practice.
We also don’t take cases on a contingent fee. (You know what I mean: the whole ‘you don’t pay unless we get money for you!’ thing you’ve probably seen on ads for personal injury attorneys.) It’s not that we don’t want to, necessarily, it’s just that this doesn’t make sense in the context of a family law case. Personal injury attorneys often take 30-40% your settlement if you win. What’s 30-40% of the settlement in a family law case? Literally everything that you acquired as a married couple? That…just doesn’t make sense. Not only that, but it’s unethical! We could lose our law license.
Family law attorneys generally bill hourly as work is performed and we work on retainers. A retainer is an amount of money that is paid up front and from which the attorney bills as work is completed. It’s not a flat fee. If your trust account falls below a certain threshold, you will be asked to replenish. If your case settles early – or you fire your attorney or you decide to reconcile instead of divorcing – whatever is unspent is refundable to you. It’s not the attorney’s money – even if it’s in the attorney’s trust account – until the attorney does the work and earns it.
Generally speaking, the attorney will use the initial consultation as an opportunity to learn about your case, discuss options moving forward, and provide you with a retainer agreement, in the event that you decide to hire that attorney to represent you. That attorney is not YOUR attorney and will not do work on your case unless and until she is retained to do so, which usually involves signing a retainer agreement and paying the retainer fee. You should read your retainer agreement thoroughly to make sure that you understand what’s involved.
Costs are a little bit outside the scope of this particular article, but you can learn more about what divorce typically costs here.
I’m not ready to talk to an attorney yet.
That’s okay. You’re still in the planning stages and, maybe, you’ll never even need to hire a divorce attorney. You don’t have to go in for a consultation if you just don’t feel that you’re ready yet. Some people do choose to come in for informational consultations, just to learn. But you can learn in other ways, too.
Download a free divorce or custody book.
We have four free books on our site, and you’re welcome to download any of them you like. If you want, we can even send a hard copy to the spouse-safe address you provide. The books are a great way to get a better understanding of the divorce process, including your rights and entitlements under the law.
Attend a monthly divorce seminar.
You’re also welcome to attend a monthly divorce seminar! We teach them at three convenient times each month – there’s a morning, evening, and lunchtime option – and each one is taught live by one of our experienced women-only divorce and custody attorneys. You’ll also have a chance to ask any questions that you have, so it can be a great way to get an answer to whatever your specific can’t-eat-can’t-sleep question might be.
Plenty of marriages are able to be saved. I’m not here to tell you that you’re going to get divorced or to push you in one way or the other. It’s completely up to you. But I do think that it’s smart to get as much information as you can so, whatever you decision may be, you’re in the best position possible to get a good divorce. (No, it’s not an oxymoron.)
For more information, to request a copy of one of our books, to register to attend a seminar, or to inquire about a scholarship to attend a seminar, give us a call at 757-425-5200.