Why file on fault in Virginia divorce

Posted on Aug 9, 2017 by Katie Carter

I spend a lot of time preaching about separation agreements.  Obviously–see here, here, and here, for more information.  I talk a lot about how useful they are, how much control they give parties over the way their assets will be divided, and the benefits of spending less on attorney’s fees (so you have more for your happily ever after).

But a separation agreement isn’t possible for everyone, and that’s not necessarily a bad thing.  When I talk about the benefits of separation agreements, I’m speaking in generalities.  And you know as well as I do that what works for one person doesn’t necessarily work for someone else.  That’s just not the way the world works.   Different people take different paths for different reasons, and there’s no shame in it if you’re feeling like things aren’t going to be so amicable that you’ll easily negotiate a separation agreement and move forward with an uncontested divorce.

There are many cases where it is necessary to file on fault, at least initially, and if you’re finding yourself in that camp, that’s totally fine. But how do you know whether it’ll be necessary to file on fault?  What does a case look like where one spouse might wind up being forced to file a contested divorce, rather than negotiating a separation agreement?  There are a couple common scenarios that we see.

1. He refuses to sign a separation agreement.  Any agreement.  Ever.

A separation agreement only works if both parties can reach an agreement.  If he’s telling you now that under no circumstances will he ever sign an agreement ever, well, then, your hands are tied.  You can’t unilaterally get a separation agreement, so you’ll have to file if you want to begin to move things forward.

Maybe he’s bluffing.  Maybe he just needs to hire an attorney and see how expensive it is to do things contested.  Whatever his deal, you’re not going to be able to force him to sign, and if he’s just not willing to even entertain the idea, you’ll have to file.

2. You don’t know what’s there to divide.

If you can’t answer basic questions about what kinds of things you have to divide, you may want to file for divorce.  We’ll want to know things like how much is left on your mortgage, what’s in your retirement accounts, and how much debt there is.  If you don’t know any of the answers to any of the financial questions, we may have to file.

Why?  Well, once we file, we can take advantage of the discovery process.  That’s the process that we use to get answers to questions about the case that we don’t have the answers to yet.  It’s how we’d figure out, in this type of case, what assets there are.  We can ask about the home and the retirement and your husband’s sources of income.  We can get copies of the mortgage interest statement, credit card bills, and retirement plans.  We can get income tax returns, too.  If you don’t know, there’s just too much of a risk without doing some more in depth work to figure out what the assets and liabilities are.

For couples who own businesses: Sometimes, this comes up in a case where a husband owns a business, too, and the wife doesn’t know enough about the business assets and liabilities.  Maybe you know plenty about the family’s finances and assets, but you don’t know very much about the business—that might also be a good reason to conduct discovery (and file for divorce).

3. He’s cut you off without any financial support.

If he has decided it’s time to separate, he’s left the marriage (literally or figuratively), and now you’re without any financial resources (or you can’t access enough resources to take care of the expenses associated with the home and family, you may have to file for divorce.

Why?  Well, if you file, you can schedule what’s called a pendente lite hearing.  Pendente lite is Latin for “while the litigation is pending” and it’s an opportunity to ask the court to grant temporary child and spousal support, among other things, so that you can continue to get the bills paid while the divorce is going on.It’s not always useful to file for divorce, but sometimes it is.  It’s important to keep your options open, and remain aware of what procedural points are available to you to move your case forward—even if your husband is difficult.   Keep in mind, too, that just because your divorce starts out contested doesn’t necessarily mean that it’ll finish contested.  Plenty of people wind up filing for divorce at the beginning of the process, and then negotiating separation agreements later on down the line.  It happens every single day!  So, if you’re feeling like you wish you could negotiate a separation agreement instead, don’t start thinking that just because you’ve filed you’re suddenly precluded from negotiating an agreement.  If he starts to be more reasonable, we can always change the case over to an uncontested one later. And, if he doesn’t start to be more reasonable, at least using the court’s means of enforcement can help protect you, and ensure that your divorce gives you as good a result as possible. For more information about filing for divorce, or to schedule an appointment with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at (757) 425-5200.