Handling Divorce and Custody

Posted on Mar 9, 2018 by Katie Carter

I often find that, when reaching a separation agreement isn’t as easy as previously thought, many people (especially those who had hoped to navigate their divorce without the assistance of attorneys) find themselves filing for custody.

Though I can certainly understand the appeal of this (after all, custody is THE biggest issue in cases where there are minor children), sometimes it’s not the best course of action. After all, you can go through the court process (with or without attorneys) but then, when you’re done, you haven’t taken any steps towards the divorce. It’s almost always just as expensive then to hire an attorney to handle the divorce, whether it’s just a separation agreement or you ultimately have to litigate, as it would have been even if custody was still an issue. It’s just…generally not all that efficient to separate out the issues this way and handle them one at a time. (And, when I say “efficient,” I mean both in terms of time and money spent.)

Are there advantages to handling your divorce and custody case separately?

That being said, though, I understand, too, that a lot of women feel like they’re totally stuck. If their husband can’t or won’t agree, then what? I can also completely understand the appeal of at least having custody handled. It’s at least some measure of security and stability. Besides, generally speaking, the juvenile court is much easier to navigate than the circuit court, so it’s nice to be able to litigate yourself, without an attorney, if you choose to. (Though don’t misunderstand me: it’s always fairly risky to go to court without the assistance of an attorney.) Add to that the fact that you can then appeal any result in the juvenile court up to the circuit court, and I doubly understand. (It’s not just any appeal either; it’s an appeal de novo, which means you’ll get a chance to present all your evidence in a brand new trial. The evidence from the old hearing in the juvenile court won’t follow you up.)

In a word, though, yes, there are advantages to handling it all separately: the appeal option is great, and the fact that many people can handle cases in the juvenile court without an attorney. Not only that, but if you’ve filed for support in the juvenile court and you get it awarded in the hearing (you can file for both child and spousal support in the juvenile court – that’s important to know), the court can back date your support to the date that you originally filed. So, even though once you file it can take 4+ months to actually get a trial date, that doesn’t mean you’re giving up on child support that you might otherwise have received during that time.

I get it. It’s tempting. It’s reassuring to think that you can at least have this one big thing handled.

Especially if you aren’t able to reach an agreement on everything else and, at the beginning of the process, a divorce seems like an insurmountable hurdle.

The trouble is, though, that doing it separately ultimately often winds up creating more problems than solutions. If nothing else, it rarely saves money or time.

Filing for divorce with a custody case pending

Women come into me all the time clutching custody petitions that their husbands have filed. I tell them that, if they want to combine custody with the divorce, we can just file for divorce – that will divest the juvenile court of jurisdiction (meaning that the case will be removed from the juvenile court and handed up to the circuit court), and combine the divorce and custody cases.

Strategically, that’s one option you have, especially if you have a court date, you don’t have a lawyer, and you’re not sure how to proceed. It’s a pretty savvy strategy in a lot of cases, too. It’s also, legally at least, fairly convenient, because it means you’ll deal with everything all in one fell swoop, rather than going to court extra to litigate these things.

If I handle custody separately from my divorce, what are my divorce options?

If you decide to handle your case separately, for whatever reason, you’ll still have to deal with the divorce later. The juvenile court can’t handle divorces; that’s exclusively a circuit court issue.

As far as your divorce options, you have two: either you negotiate a separation agreement, or you file for divorce. Those are the only options anyone facing divorce has, so you’re not limited by the fact that you’ve handled custody separately – just don’t expect that your case is suddenly going to be much easier because custody is already determined. In my experience, it really isn’t. Even with custody off the table, we can still spend a lot of time fighting over other issues – retirement, the house, spousal support, etc. I find, too, that the loser in the juvenile court is typically more belligerent later, too, when it comes time to discuss the divorce.

Separation Agreements

We can certainly go back to trying to negotiate a separation agreement – most people do try this first, because it’s the cheapest, easiest way to get a divorce. Unless, of course, your husband won’t agree; in that case, it can be a huge waste of time and resources.

If you already tried to reach an agreement before and were unsuccessful, it might not be reasonable to think that negotiating an agreement is really going to be a good use of your time and money after the custody case is finalized in juvenile court.

Separation agreements are great, and there are all kinds of reasons why you might prefer to finalize your divorce this way, as opposed to litigating it – but it’s almost important to think realistically about your case, and whether or not this is going to be possible for you under the circumstances.

Filing for divorce

If you’ve been separated for a year, you can file for divorce on no fault grounds. (If you have a signed agreement and don’t have minor children, you can file in just 6 months – but that’s not you, or you wouldn’t be reading this article.)

If you haven’t been separated for a year, you’ll have to have fault based grounds to file (or wait until the one year has run to file). Fault based grounds for divorce in Virginia are adultery, cruelty, apprehension of bodily hurt, desertion, abandonment, and felony conviction. Talk to a licensed and experienced Virginia divorce and custody attorney about your options related to filing on fault. (It’s fairly complicated.)

When you file for divorce, you’re telling the court that you’ll need a judge to enter an order regarding the assets and liabilities in your divorce. Custody would normally be included, too, but if you’ve already had a lower court enter an order, we don’t have to litigate the custody portion here. Still, you’ll likely find it doesn’t save you very much money, if any at all.

Just because you’ve filed for divorce doesn’t automatically mean that you’ll have to go through with a trial at the end of the process. Many people file for divorce, and ultimately end up negotiating separation agreements later. The appeal of filing, though, is that it allows you to use the court’s authority to move the case forward, with or without your husband’s cooperation. You can also conduct formal discovery, set a judicial settlement conference, and set a trial date, all of which will move your case forward on a timeline, rather than waiting for your husband to cooperate.

Whatever you choose, whether you file for custody and then handle your divorce, or file for divorce and divest the juvenile court of jurisdiction, it’s an important strategic decision that you should make with the help of an experienced attorney. There can be reasons to choose either course of action, but you should have spent some time actually weighing the advantages and disadvantages before you make a decision.

For more information, to request a free copy of our divorce or custody books (or both!), or to attend one of our live divorce seminars, give our office a call at 757-425-5200.