Going to court is – by almost any metric – the nuclear option in a family law case. Literally everyone is scared of it and almost anyone would try to avoid it if there was any way at all. Usually, though not always, it’s possible to negotiate outside of court. In fact, most family law cases ultimately do resolve by agreement.
It’s not that we never go to court; on the contrary, family law attorneys are in court all the time. But we’re often handling lesser hearings, like pendente lites and various motions, rather than full blown divorce trials.
Custody trials happen more often, whether in juvenile court (because either the parties weren’t married or because its an initial determination or modification separate from divorce proceedings), or circuit court, as part of a divorce action or on appeal from juvenile court, mostly because you really can’t put a monetary value on custody the way you can almost anything else.
But still, trials are much rarer than settlement and, ultimately, generally yield much, much better results. (Not to mention, it often costs far less!)
Why are negotiated results better than litigated ones?
You may remember that the OJ Simpson trial went on for eight months. But no regular people in divorce and/or child custody cases will get that amount of time on the docket – nor could they afford attorneys to represent them for that period. (O.J.’s defense is estimated to have cost between $3.5 and 6 million dollars – in 1995!) There are no court appointed lawyers for family law cases, either. Though Legal Aid exists, it often doesn’t take on contested cases because they are understaffed and the resources involved in contested cases are so significant that it would dramatically reduce the number of people Legal Aid could realistically help. No, you will get the legal help that you can pay for, or you’ll represent yourself. (Yes, you’re allowed to do that in Virginia!)
Most hearings are covered in an hour or two at most; some get as little as thirty minutes. For a full contested divorce trial, we may have a full day, but even so – you only get half of the time you think you get (and a third if there’s a Guardian ad litem involved). Each attorney gets an equal amount of time to present their case, so you’d be surprised how quickly the time goes.
How do judges make decisions about division?
I’m not a judge myself, so I can’t speak to each judge’s particular mindset. But, usually – based on the results that I’ve seen – I’d say that their main interest is in an “equitable,” which is not to say “fair,” division of the assets.
Judges don’t want to get overturned on appeal. They don’t want to face unsavory allegations of favoritism.
But they don’t care so much about, for example, maximizing the value of an asset. They also don’t have enough time to deep dive into specifics, so some of the things that come as part and parcel of an agreement (like deadlines, penalties, and specifics built in) are not a given in a court order.
For example? Sure, glad to give one.
The judge orders the 401(k) divided in half, with each party to receive their marital share. It’s 100% marital, to 50% to each party. That’s it. That’s the order.
The problem? There’s no specifics built in. In an agreement, we’d say who gets what, but we’d also specify a deadline. Sixty days after signing of the agreement, for example. We also usually put in penalties for noncompliance, generally specify that each party will cooperate in anything needed to effectuate the transfer, and who will bear the costs associated with, for example, a QDRO or other document needed to do the rollover. If someone’s cashing out, too, we would put something about how tax consequences, if any, would be handled. We’d also put in that you’d be entitled to all gains or losses from a certain date, ensuring that your portion (if it appreciates, which it should) reflects the benefit of market gains. (Losses do happen, of course, but historically the stock market has grown each year, so mostly losses are a day-to-day issue, rather than a year-to-year or decade-to-decade issue.) All details that a court order would not address.
The problem? Obviously, you lose transparency and clarity, but also you create other areas of stress that can lead to additional litigation. If you get the order that you get 50% of his 401(k), but then he refuses to sign any documents or participate in the drafting of any QDRO, you may need to go to court to force entry. An agreement would have a deadline, so you might have avoided this headache entirely, but, as a backup plan, it would also have something – usually – that says that if you have to go to court to enforce any portion of the agreement that the prevailing party (in this case, you) would be able to collect attorney’s fees from the other party. Kind of a big deal, don’t you think?
Another example? But this time, make it custody. Say no more, girlfriend.
The judge orders week on, week off visitation. That’s it. That’s the order.
Oof. There’s a lot to unpack here, but that’s pretty bare bones. What day do you switch? Where do you do pick up and drop off? Maybe you drop off at school (and the other party picks up from school) during the school year, but what will you do in the summer? Do you want to pick up from home – or in some other location? (In cases with DV or post-separation abuse, we often like to suggest a public place for meeting up.)
What about vacation time? Can back-to-back weeks be scheduled? How many weeks in a row before the other parent gets parenting time, too? Do you have someone who gets first choice in odd versus even years?
What about phone or video calls? Scheduled or not?
What about extracurriculars, doctors appointments, therapy, and other kid-related things are going on? How will you handle travel?
We handle these details – and so many more – in a standard custody agreement. The way I see it, a custody agreement (or the custody portion of a separation agreement), is a lot like the foundation of a house. You need to build something sturdy on top of it, so it needs to be well designed.
This is, of course, especially true in a case where there is (or has been) abuse, because abusers thrive in the gray areas. They’ll also drive you crazy trying to exploit each and every loophole if you let them and it’s nice to be able to say, “No, drop off is at the police station,” and end it there. Too many open ends creates room for one of you (or even both of you) to want something different and then be angry or disappointed if the other party isn’t on board.
It doesn’t facilitate cooperative coparenting, you know? And if you want a good relationship post-divorce, it helps to have a solid framework in place to build on. Sure, things can change over time as trust is built and as chaos is eliminated, but you’ll need to get through a tricky period – and even in a relationship where there has been and will be no abuse, there’s a tricky period – first.
Sure, a court order can – more or less – get it done. But a court order also isn’t likely to give you the details that you need to build a post divorce (or post breakup) life you can live and thrive with.
For more information or to schedule a consultation, give our office a call at 757-425-5200.