Divorce during the holidays

Posted on Dec 14, 2015 by Katie Carter

It’s not easy to think about divorce at any time during the year, but it’s especially difficult during the holiday season. The urge to be one big happy family, at least for the kid’s sake, is stronger than ever. It feels selfish to admit out loud, or even just to yourself, that things just aren’t right between you and your husband. At no other time in the year do we hear as many women telling us that they want to just try to ride it out for a little while longer.
It’s understandable. The holidays mean a lot to most of us, whatever our religious denomination. It’s a time of family togetherness, and that’s something that seems particularly precious and fleeting when you start to think about what separation and a possible divorce will introduce into your life—and, of course, your children’s lives.
A big part of what most people find disconcerting about divorce is that they just don’t know what to expect. You can prepare yourself if you an idea about what’s to come, but when you’re in truly unfamiliar territory, what you don’t know can easily cause you to lie awake at night, worrying.
Maybe the holiday season isn’t the time for you to think about divorce. Maybe, just for the sake of normalcy, you need to ride it out, at least until January. In January, of course, things tend to feel a bit different. Rather than focusing on family, we all become full of well meaning intentions and resolutions designed to make the next year better, more productive, and more fulfilling than the last.
Maybe it is exactly the time, though. Maybe you feel like you can’t imagine waiting until January, or like there’s really no time like the present to start building the better future you always imagined for yourself. Because isn’t that what this is all about? It’s about having a chance to start fresh and do the things you want to do. It’s about feeling happy, satisfied, fulfilled, and content. It’s about safety, and security, too—which, in case you didn’t know, are very often feelings you provide for yourself, not ones you have to rely on a man to provide for you. It’s about independence, freedom, and making your own choices. For some women, there really is no time like the present to start moving towards your goal. Why wait?
Whatever you’re thinking in terms of timing, it’s fine. There is really no right or wrong answer, especially when it comes to your life. That feeling in your gut will guide you towards the outcome you need.
My goal here is to let you know, whatever course of action you decide on, what to expect. I know it’s a scary and confusing process, but hopefully with a little more information, you can begin to start to make the decisions you need to make about how to move forward.
In this post, I’m going to answer some of the most common frequently asked questions I get (like, can I make him leave and can I get him to pay for my attorney) and advice for you should begin to move forward. Let’s get started.

I want him to get out. Or I’ll go. I don’t care, just so long as I don’t have to live with him anymore.

I hear this all the time! Most people tell me that they’d like to start living separately, they’re just not sure how to go about it.
A couple of things you should know.

1. You technically don’t have to live in a separate house (or apartment or whatever) to be considered legally separated in Virginia.

If you really do want to move out, hang on—I’m coming to that. But, just in case living together is really the only financially feasible option (and it is in some cases), you can live separate and apart in the same house.
In Virginia, it’s really all about cohabitation—which means living together as husband and wife. You’re separated if (1) at least one of you forms the intent to end the marriage, and (2) you stop cohabitating. Cohabitating is something you can do both inside your home and out in public. Inside your home, you should stop cooking, cleaning, and doing laundry for each other. You should live in separate rooms, sleep in separate beds, and stop wearing your wedding rings. Outside the home, as tempting as it is, you have to stop playing the happy couple. No more attending church or going to parties together. To the extent that you have to cooperate for the sake of your children (like attending parent teacher conferences), it’s okay—but that’s really about it.

2. If you leave the home, you could be charged with desertion.

Unfortunately, moving on and moving out isn’t as easy and packing up your bags and riding off into the sunset. If both of you want the divorce and agree to separate, you’re fine—but it’s probably wise to get an agreement signed that says that you leaving doesn’t constitute desertion. If he’s the one leaving, no worries. You won’t get charged with desertion if he’s the one leaving.
Is this a huge risk? Probably not. Still, as an attorney, I have to advise you to be careful, and I want to make sure you’re doing all the things you need to do to protect yourself later on. Desertion is weak, as far as grounds for divorce go, and, though it’s possible, I’ve never seen a party’s desertion truly change the way property would have been divided. Still, it’s best to be careful, and get an agreement signed before you leave the home.

3. You can’t change the locks unless you have an order granting you exclusive possession.

If the home is a marital asset (purchased during the marriage using marital funds), you can’t just go around changing the locks to keep him out. After all, it’s his, too! Usually, the best way to do this is to file for divorce and then schedule a pendente lite (that’s Latin for “while the litigation is pending”) hearing. (Talk to an attorney about how to do this.) Then, you can ask for exclusive possession. If he’s already out anyway, you’re pretty likely to get it. After that, it would be appropriate to change the locks.

4. If you leave, you’re not giving up any property rights to the home or the belongings still in it.

You can leave, but that doesn’t mean you’re giving up your right to anything. The house and all the stuff in it are still marital property (as long as they were classified as marital property before you left) and subject to division in your final divorce. Don’t worry about walking away from valuable things; we’ll get those all handled later. If you can’t bear another minute in the home, just go and we’ll sort it out later.

Can I get him to pay for my attorney’s fees?

This is a very common question, and one for which I really, really wish I had a better answer. Generally speaking, regardless of who originally decided it was time to divorce, judges believe that each party really does have a responsibility to pay their own attorney’s fees. After all, it’s a free market economy—so businesses can price their goods and services at a level that the market will bear, and the consumer can make a decision about whether to purchase those goods and services. It’s simple supply and demand stuff here.
I think a judge would say, essentially, that if you don’t have the money for a Lamborghini, you probably shouldn’t be buying one—especially not if your plan is to have your husband have to go back later and pay for it for you. Your husband didn’t make that decision. If your budget is more on the level of a pre-owned Kia, then a pre-owned Kia for you it is. I didn’t say it’s fair. I didn’t say I agree. I’m just telling you what I see in my practice every day.
Should he have to pay your fees? That’s neither here nor there. We can certainly ask for them, and in fact I always do, but I don’t want you to get your hopes up. Attorney’s fees are very rarely paid by the other party and, when they are, it’s by agreement (not by a court order). So, if your husband says he’ll pay them, get it in writing NOW. If he refuses, you’re probably stuck paying for them on your own.
Bottom line? You should carefully research attorneys and options, and pick something that’s in your budget. Need a little help? Check out my book on how to hire an attorney. It’ll give you advice on how to pick an attorney, what questions to ask, and how to stay on track with your budget.

Do I need to hire an attorney? What are my choices when it comes to divorce?

Depending on the type of divorce you plan to pursue, you may not have to hire an attorney. Of course, if you’d feel more comfortable letting a professional handle it for you, that’s fine, too.
In Virginia, you can only get divorced in a couple of ways. You can get divorced in court or with a separation agreement.
A separation agreement is a legal contract that divides all the rights and responsibilities of the marriage between the two of you. The agreement divides all the things that a judge would divide. The major differences? A separation agreement is usually achieved more cheaply, and you have a lot more control over how things will be divided.
If we’re being technical, though, we can break divorce down into three types: uncontested no fault, contested no fault, and contested fault.

Contested Fault Based Divorce

To get divorced in Virginia, you have to have grounds. Your grounds can be either fault based or no fault based. If they’re fault-based, though, you’re automatically in contested divorce territory. Because fault based grounds carry civil and criminal penalties (or, at least, they have the possibility of carrying penalties), you have to go to court to prove your fault based grounds exist. You can’t just agree that they exist; there is evidence required here.
Fault based grounds include adultery, sodomy, buggery, cruelty, apprehension of bodily hurt, desertion, abandonment, and felony conviction. For more information on the fault based grounds (which is just a little bit outside the scope of this article), click here.
A divorce is contested when you and your husband can’t reach an agreement about how everything will be divided. A fault based divorce is always contested, at least as far as it relates to whether your fault based grounds exist. If otherwise things are amicable between the two of you, you could theoretically reach an agreement on how everything else (the liabilities, assets, and responsibilities arising from your marriage) would be divided. We don’t normally see that happen, mostly because in a fault based divorce tensions are already running high and at least one party (the party alleging fault based grounds) is hoping that being able to prove grounds exist will result in a disproportionate award of assets in his/her favor. Though it’s possible to reach an agreement about this part, the divorce would still be classified as contested.
As you can imagine, contested fault based divorces are the most expensive and time consuming because you have to litigate two different issues. You litigate on whether or not your fault based grounds can be proven, and then you litigate the divorce itself and how everything will be divided.

Contested No Fault Divorce

A contested no fault divorce, on the other hand, just means that you and your husband can’t agree about how to divide the assets and liabilities of the marriage. Maybe you have fault based grounds and maybe you don’t, but, either way, you and he have agreed to move forward without using those grounds.
In a no fault divorce, your grounds are your period of separation. Since you don’t have (or choose not to move forward with) any of the fault based grounds, you have to be separated for long enough before you can get divorced. Your period of separation becomes your grounds for divorce. In Virginia, to get divorced, you have to be separated for a period of one year, or six months if (1) you don’t have any minor children, and (2) you have a signed separation agreement.
A contested no fault divorce is less complicated than a contested fault based divorce because you have one less thing to prove. When you get in front of the judge, you’ll just be asking him (or her) to decide how to divide your things. You won’t have to ask him or her to decide whether your grounds are valid; since your grounds would be your period of separation. You’ll have to provide some evidence about your separation, but that’s easy in comparison.

Uncontested no fault divorce

The majority of divorces are uncontested no fault divorces. In an uncontested no fault divorce, you have a lot of options. Because you’re not litigating fault based grounds and you plan to reach an agreement about how everything will be divided, you don’t have to go to court at all. There’s a lot more flexibility in how you can move forward, too.
If you go to court, you go to court and then the judge decides. That’s really it. There’s not a lot of control over the situation.
If your divorce is uncontested, on the other hand, you can go about it a couple of ways. The end result, of course, is a separation agreement, but the means through which you achieve that end can look a lot different. For a lot of women, the ability to choose your own method is one of the most attractive features of a separation agreement.

If I want to negotiate a separation agreement, what are my options?

Hiring an Attorney

Most people elect to hire an attorney to begin the process of negotiating a separation agreement on their behalf. When attorneys talk about different ways of getting divorced, this is what they mean when they refer to “negotiation.”
In this type of case, you hire an attorney to draft and negotiate a separation agreement on your behalf—but, of course, with your input. Usually, but not always, there are attorneys on both sides. Because you technically can represent yourself, sometimes one party or the other decides to do it on their own.
Regardless, though, it really is a negotiation. There are no real rules when it comes to negotiating separation agreements, so you should feel free to be open and honest with your attorney. That way, you’ll be able to make your separation agreement a truly customized document that reflects all your goals and priorities, and gives you the ability to have the best brand new start possible.

Hiring a Collaboratively Trained Attorney

Collaboration is a slightly different process. The end goal is still a separation agreement, and it’s still technically a negotiation, but that’s where the similarities end.
In a collaborative divorce, you have to hire a collaboratively trained attorney, and so does your husband. You’ll also hire a divorce coach (in fact, one for each of you), and then you’ll share a child specialist (if you have children) and a financial specialist. In collaborative divorce, you make a pledge not to go to court. That doesn’t mean that you agree easily and never fight over how things will be handled, but it is a different type of experience. It’s much less adversarial and more, well, collaborative (duh, right?). People who go through the collaborative process indicate a much higher level of happiness in the outcome and the process it took to get them there.


In mediation, as you probably already know, you work with a mediator to negotiate your separation agreement. A mediator may or may not be an attorney. In mediation, you and your husband share one mediator between the two of you.
It’s not the mediator’s job to give you an idea of what the law entitles you to, what you could expect a judge to do if you took your case to court, or what a good settlement looks like for you. It is the mediator’s job only to help you reach an agreement.
Mediation can be a great way to efficiently and cheaply negotiate a signed separation agreement, but we always recommend that, prior to going to mediation, you speak to an attorney about what a good agreement looks like for you. After mediation, it can also be helpful to go back to that attorney and have the agreement you came up with reviewed, just to be sure. (Remember: you can’t really go back and change your mind later, so the time to do this is BEFORE you sign!)

Do it Yourself

If you don’t want to hire an attorney to represent you, you don’t have to. In fact, lots of people choose not to hire an attorney—whether because they can’t afford to hire one or just choose to work on their own case themselves, it doesn’t matter.
It’s not really possible to represent yourself in any type of contested case, but in an uncontested, no fault divorce, it is. Of course, if you’ve never done it before (and I imagine you haven’t), you probably have a lot of questions. How do you get started? What does a separation agreement look like? How do you know what the law entitles you to? What is a good agreement?
It’s complicated, and there’s not really a whole lot out there to help you navigate these tricky waters. You can Google a separation agreement, and you can find a blank form. But it doesn’t say whether it’s Virginia specific. It doesn’t even say that it comes from an attorney’s office. (Spoiler alert: it probably doesn’t.) It doesn’t tell you what the law says or what you might get if you went to court. In short, it provides no guidance at all to help you make sure that you’re drafting a good agreement for yourself.
I’ve seen women who draft worse agreements on their own behalf than their husband’s attorney would draft for them. Don’t be that woman!

What should my first steps be?

Well, you’ve already taken some great first steps, and you’re well on your way! Just by reading this, you’ve already got tons of information that lots of Virginia women don’t have.
If you still want more, or you’re ready to take the next step, consider attending one of our divorce seminars. We teach them on the second Saturday of each month in both Virginia Beach and Newport News, and on the third Tuesday of the month in Virginia Beach. It’s a great way to get information directly from one of our divorce attorneys—because each seminar is taught by one! You can ask your questions and get the information you need to decide what to do next.
For more information, visit our site by clicking here.
If you’re ready to talk to an attorney one-on-one, we can help you with that, too! To schedule a consultation with one of our attorneys, give our office a call at (757) 699-5796.