“Conscious Uncoupling” and Virginia’s No Fault Divorce

Posted on Apr 14, 2014 by Katie Carter

Well, suddenly, a divorce-related phrase I’ve never heard before is trending all over the internet. Suddenly, ever since Gwenyth Paltrow announced her separation from hubby Chris Martin, it’s all anybody can talk about.

What does “conscious uncoupling” mean?

Well, Gwenyth didn’t exactly provide a dictionary definition, but I can guess what she’s referring to is the kind of divorce that doesn’t wind up in a courtroom, with parties on each side of the room screaming insults at each other and demanding that they be given custody of the wooden salad bowl that was purchased at Ikea in 2009 (or 2010, depending on which side you ask) for $7.99. Conscious uncoupling sounds nicer than divorce (you have to give her props for the killer phrasing), because, I’m sure, that’s because Gwenyth wants. As a mother of two young children and a person with, presumably, many, many hundreds of millions of dollars to divide, it’s in her best interest to keep the drama to a minimum. Why? Because for Gwenyth, just like for you, drama drives up the costs of divorce dramatically.

I can’t really speak for the family law attorneys in Hollywood, but family law attorneys in Virginia typically charge by the hour for their services. The longer a case takes, the greater the attorney’s fees. It’s pretty simple math. In our area, attorneys charge hourly rates anywhere from $150-500 an hour, and sometimes even more, depending on the case, its complexity, and the attorney involved. So, it stands to reason, that if you and your attorney discuss with your husband and his attorney how every single item of personal property that was formerly in the marital home is going to be divided, your costs are going to accrue quickly.

If you and your attorney can’t agree with your husband and his attorney about how retirement accounts or custody arrangements are going to be handled, your problems are even bigger than when you were deciding whether it was humanly possible to separate the salad spinner from the wooden salad bowl purchased at Ikea, or whether the two must only be considered as a set. Ultimately, in these cases, we usually end up sending back and forth a couple of letters, proposing this or that arrangement in a separation agreement, meeting for a settlement conference, and, then, if we still can’t agree, we’ll ask a judge to decide.

Of course, part of letting the judge decide means that both you and your husband will have the opportunity to convince him that your position is better, more correct, or more appropriate. The other side’s opinion is intolerable, ill-conceived, and downright wrong. You HAVE to bash each other to promote your point of view; you have to view each other as opposing sides in an increasingly hostile battle. It’s not very healthy, it’s not very realistic, and it definitely doesn’t promote your ability to deal with each other post-divorce (which is pretty important, particularly if you plan to co-parent).

If you consciously uncouple, on the other hand, you’re making a decision that some goal or other is more important than your hurt feelings. I don’t know her, but I’m assuming Gwenyth isn’t superhuman—she’s probably pretty upset about ending her marriage to the father of her children—so her feelings are hurt, and she’s feeling sad. Still, she has decided that some things, presumably her children, as more important than all that. She’s committed to keeping those things at the forefront of her mind as she ends her marriage. Does it sound good? Absolutely. But it also says a lot about where her mind is, and what she’s thinking about most as her marriage ends. Because, after all, whether you call it “uncoupling,” or “divorcing,” it really all means the same thing in the end, you just might have a different road to get there. And that, I think, can make all the difference.

I’m not rich or famous. Is it possible for me to “consciously uncouple” in Virginia?

It’s definitely an innovative term, but the idea itself that you can “consciously uncouple,” rather than have a knock down, drag out fight in a courtroom, isn’t really new. For many years now, attorneys in Virginia have recognized the necessity of providing an alternative to traditional divorce for couples whose focus is on something other than enmity. It’s not a new concept, and it’s definitely not rare. In fact, today, we see many, many more divorces where the parties are determined to resolve things amicably than where they expect to find themselves in court. As a result, uncontested, no fault divorces by way of a separation agreement and also collaborative divorces have been on the rise.

At the core of this movement is a concern for the kids or the assets involved. Parents want to dissolve their marriage in a way that preserves their relationship with their children, and also their relationship with each other, in an effort to promote effective co-parenting from the start. Some assets, too, like family-owned businesses, real estate, and retirement accounts, provide powerful motivation to the parties involved to keep costs down. Rather than paying too much money in attorney’s fees, the parties in these types of cases focus on preserving the assets, rather than spending them to make a point or prove a principle.

This definitely isn’t a concept that’s limited to rich, famous superstars like Gwenyth. In fact, for almost every couple, conscious uncoupling is a possibility, but it does require a certain amount of self awareness, respect for the other side, and a belief that something (children or asset preservation, probably, in most cases) is more important that anything else.

What’s a separation agreement?

Call it whatever you want, but negotiating a separation agreement, whether it’s something you do on your own or hire an attorney to do for you, is definitely an act of conscious uncoupling. A separation agreement is a legal contract, signed by both parties, where you agree to how everything in your marriage will be divided. Everything, from the house, to child custody, division of personal property, retirement accounts, and support will be determined in this document. It’s an agreement though—it’s not something you can force someone else to sign. Usually, we negotiate these agreements with the other side, so it’s a back and forth process. We make an offer, and the other side makes a counteroffer, and eventually we get to a point where both sides are relatively happy with the outcome, they sign the agreement, and they’re ready to move forward without having to litigate their issues in court.

In Virginia, we call these kinds of divorces uncontested, no fault divorces, and it means that all the issues in the marriage are resolved (because an agreement has been signed), and neither party will pursue any kind of fault-based grounds against the other. Instead, we use the grounds of having lived separate and apart for the statutory period (one year, or six months if you don’t have minor children AND have signed an agreement).

What’s a collaborative divorce?

Collaborative divorce, on the other hand, is a little more structured, but is still a conscious act of uncoupling. In a collaborative divorce, both sides hire collaboratively-trained attorneys to represent them, and divorce coaches (therapists) to help them through the divorce process. Then, you also hire a team of professionals to represent the two of you together—specifically, a child specialist and a financial specialist. These people are there to help the both of you reach an agreement that takes into account both of your priorities and concerns, and guides you as you create your separation agreement.

Whether you hire an attorney with the goal of drafting a separation agreement, hire a collaboratively trained attorney, attend mediation, or negotiate on your own, a separation agreement is the end result. Otherwise, if you can’t come to an agreement, you’ll have to go to court, and those divorces usually end up being the most contentious—and expensive.

Can I really do it on my own?

It’s absolutely possible to do it on your own! In Virginia, you can represent yourself in a divorce case—you just have to know where to go to get the information you’ll need to do it. Most of the time, the courts won’t really give you any information for a couple of reasons. First of all, the courts are determined to be neutral. They don’t want to give the impression that they’re favoring one side over the other. Second, they want to be impartial, meaning that they can’t give assistance to one side that they don’t give to the other. Both of these concerns are very closely related, but the end result is usually that the “pro se” litigant (someone representing herself in court) doesn’t get the assistance she needs to move forward.

It is definitely possible to consciously uncouple and do-it-yourself!

But if I hire an attorney to represent me, doesn’t that mean I want to fight?

Absolutely not! When it comes to hiring attorneys, I’ve found that there are generally two thought processes. The first is that you can’t get divorced without an attorney, so you just hire one to start the process. The second is that, if you hire an attorney, it’s a sign that you plan to fight the whole thing out. Neither one of these is true!

You absolutely do not have to hire an attorney if you don’t want to (though I do seriously recommend that you do your research before you decide to do it yourself), but it’s also not true that hiring an attorney means that you’re ready to fight. Most people probably do ultimately hire attorneys, and most people end up getting uncontested, no fault divorces.

It is your attorney’s job, if you have one, to look after your best interests, argue for your advantage, and help you reach a successful resolution of your case. Whether your divorce is uncontested or contested (meaning that it is fought out in court), your attorney is an advocate for you. Some cases wind up in court (and if yours does you’ll absolutely want to hire an attorney), but most cases don’t. Whether or not you hire an attorney has little, if anything, to do with whether your divorce winds up in court—usually, it has more to do with what the relationship is like between the parties.

If you’re looking for a friendlier, more amicable way to get divorced, you don’t have to go to Hollywood. In Virginia, we offer plenty of alternatives for couples who are looking to get divorced but don’t want it to turn into an episode of Judge Judy. (No offense, Judy.) It absolutely is possible to keep in mind your shared priorities, save money, and walk away from the divorce process without feeling like you’re scarred for life. For more information, to find out how you might be able to do it yourself, or to schedule an appointment with one of our attorneys, give us a call at (757) 425-5200.