Divorce and Custody Case Choices

Posted on Feb 12, 2018 by Katie Carter

One of our goals in every single case is making sure that each woman understands the options available to her. Whether she files petitions with the court or whether she negotiates her result, there are advantages and disadvantages.

We know the law best. But you know your husband/child’s father best. And, as a result, some of the decision making rests with you. Will he negotiate? (It’s cheaper. It’s less adversarial. It often yields better, more collaborative results.) Or will you have to go to court? (If he won’t come to the table to discuss, you might have to force his hand, even though it costs more.)

It’s always a cost/benefit analysis, and one that’s certainly easier to make in retrospect than it can be to make at the beginning of the process, looking towards the future. Will he negotiate? In the beginning, many women are inclined to think no. He refuses to pay support. He won’t give any of his retirement. He says so, emphatically!

But going to court is scary too. The costs are higher. The results are both more and less predictable, depending on the issue in question. When it comes to, say, child support, for example, the results in court are going to be based on the formula – so not too surprising either way. When it comes to, on the other hand, spousal support, there could be a wide range of potential verdicts. That makes going to court a little more intimidating, too.

So, what do you go – go to court, or negotiate?

That’s always a tricky question. And, ultimately, one that only you can answer. There are a lot of factors involved in what decision you ultimately make. Some of those factors are ones that affect women across the board (we’ll talk about a couple of those more generic ones in a minute), and some of them are unique factors that might impact your case specifically but not impact someone else’s case. It’s always best to talk to an attorney one on one as you make big decisions like this that can impact your case and how well it is ultimately resolved.

Of course, you should also know that we (like you) don’t have a crystal ball. It sounds obvious, but it’s true! We can’t predict your husband/child’s father any more than you can – in fact, you could probably predict him BETTER than we can, because you at least have the benefit of knowing him, and we only know what you’ve told us in the span of our acquaintance.

Sometimes, it does happen that a client makes one choices, and wishes later that she made a different choice. We try to make sure that doesn’t happen by carefully examining all the evidence available to us, but it does sometimes happen. You can help us avoid that by providing us all the information you have at your disposal as truthfully and completely as possible (I know, I know, sometimes the information you have is embarrassing or uncomfortable, but, trust me, it’s less embarrassing to tell us up front than it is to admit it later on—besides, we’ve heard it all, and definitely won’t judge you for it).

What considerations should I be aware of as I’m thinking about my options?

If you’re trying to decide whether to negotiate or litigate your family law issue, there are a couple of things you should consider.

1. Retroactivity.

If child support is your game, you might want to consider filing and negotiating simultaneously. Why? Retroactivity. Because, if you aren’t able to reach an agreement regarding child support, you’ll still have to file. When you go to court, you can ask for child support to be awarded retroactively (meaning, posted back) to the date that you filed your petition for child support initially. That can be months and months of back child support by the time you actually get in for your trial.

If custody and visitation are also issues, you can file for those, too, but retroactivity is especially important where child support is concerned. It might even give you a leg up where negotiations are concerned, because it gives him an extra incentive to agree. Child support will be awarded regardless (it’s based on a formula in Virginia, as any attorney will tell him if he consults with one), so he might as well agree, rather than going to court – or going to court AND taking an attorney, which would just cost him more money, adding insult to injury.

2. An agreement is only good if it’s signed.

Negotiations aren’t admissible in court. An agreement is nothing – it’s just a draft – if it’s not signed. So if you toss around versions of an agreement for months – or years – and nothing gets done, you’re no closer a resolution than you were when you started.

So time can be wasted, and money can be spent, and you can wind up no closer to a result. To then take your case to court might require (and, in most cases, with most attorneys, DOES require, a different retainer agreement) more money and more time, which can be incredibly stressful and frustrating.

3. Judges don’t give you a lot of control over the outcome.

If you have a really specific idea of what you want to see in your final outcome (I mean, really, who doesn’t?!), an agreement is going to give you the most flexibility to accomplish that. A judge…well, yeah, that’s not going to happen.

I don’t say that to suggest that a judge doesn’t care, or isn’t capable. Because that’s not the case at all. It’s more that the judge doesn’t have the time or the ability to really craft such specific orders in each and every case (not to mention the fact that doing so would increase the likelihood that his/her behavior would be found to be prejudicial to one party or the other and then overturned on appeal!).

There are also unique factors that affect specific individuals that come into play that might affect the way you weigh the advantages and disadvantages in your specific case. Whether it’s divorce or custody, we can be looking at all sorts of things – a party’s relocation, for example, or someone’s adultery. We can be looking at a person’s career choices, or their mental and physical limitations, to determine what’s appropriate, or how they might react to specific case-related choices. Substance abuse or mental health disorders can also present issues that can be wide ranging and apply in a number of different ways, depending on the case and the specific issues presented in each one. In short, each case is different, presents unique issues, and plays out in a variety of different ways.

It’s difficult to determine the best way to proceed, but we always have to make do with the information that we have at the moment. Sometimes, that means that we change our plans depending on how the case evolves, too.

How can I make the best decisions possible for my case?

The best thing you can do to make sure that you’re making the best decisions possible for your divorce and custody case is to get as much information as you can.

There’s a lot of information out there, but you want to make sure you’re relying on up to date, Virginia specific information generated by sources you know you can trust. Right? I mean, who wrote all that stuff that’s out there on the internet anyway?

Anything published on our site was written by one of us – a licensed, experienced, Virginia divorce and custody attorney, so you know you can trust it. The law evolves with time, and we’re always evolving with it – that’s our job, after all! We write new information all the time, and we stay ahead of trends and updates in the law.

We’ve got four awesome books that you can quickly and easily get a copy of, either delivered straight to your inbox in e-book format, or delivered to your door as a hard copy if you live in our immediate area (or not, if you prefer just to have the e-book copy for privacy purposes – though, fear not, we send them in plain white envelopes). We’ve got tons of free reports, on topics related to both custody and divorce, and you can browse the entire catalog here. We also offer divorce and custody seminars, which are super comprehensive, and taught live by our attorneys.

Knowledge is power, you know. People say that for a reason, and they say that because people who know things are able to make the best decisions possible for themselves and their cases and their lives. We do our best to make sure that people are able to make the best decisions possible for their divorce and custody cases – that’s our thing – but you’ve got to do your bit, too. Read the books. Download the free reports. Attend the seminars. Ask the questions that are keeping you lying awake at night. Make sure you’re making the best decisions for you. Because you play a role in this process, too!

We’re here to help guide you in the right direction. Need to schedule an appointment to get a few more questions answered, or to begin to plan your next steps? Give our office a call at 757-425-5200 to schedule now.