If I’ve said it once, I’ve said it a million times: in Virginia, you can either get divorced by negotiating and signing a separation agreement, or by going to court and litigating in front of a judge. In either case, all of the marital assets, liabilities, and responsibilities will be divided, but in one scenario you retain more control over how its divided.
If you go to court, the judge will decide – not you, and not your soon to be ex husband. Not only that, but it’ll take longer and cost considerably more.
Almost everyone starts the divorce process hoping that they’ll be able to negotiate an agreement, but that isn’t always possible. There are a number of reasons why, but often one of the biggest reasons is that your husband just won’t cooperate. Especially if he’s the higher earning spouse, and he knows he’s going to have to start paying both child and spousal support and divide up his hard earned retirement accounts, there’s very little incentive for him to actually sit down and do it.
When the parties have more equal incomes, this is usually less of an issue – because it’s less a situation where either spouse feels like they have nothing to gain and everything to lose. Most often, I find these scenarios where there’s a tremendous disparity in come, and where one spouse has little or no option to do anything to improve her circumstances without resolving some of the issues in the case.
Instead of negotiating with you, he’ll gaslight you, put you off, ignore you, or refuse to speak with you at all. So, what choice do you have?
What can you do if your husband won’t negotiate the terms of a separation agreement with you at all?
I get it. Money is tight. Often, when clients are the most concerned about money, they opt to negotiate a separation agreement from the beginning.
Why? Well, for one thing, the retainer fee is much lower – usually, more like $2500, compared to $5000+ for a contested case. The hurdle of getting the retainer paid and in place in advance of the case often feels like so much that the woman has no choice but to negotiate an agreement first, or at least attempt it.
That, in my humble opinion, is a mistake. While I understand the decision making behind that decision, it often ends up with the woman spending everything she has in fruitless negotiations, only to find that she is going to have to file for divorce to move things forward.
Ultimately, if he won’t negotiate, there is absolutely no other road forward other than litigation. Of course, that doesn’t mean you’re doomed to move forward with an entire divorce trial. You can always start a contested case but switch to an uncontested case later, if you’re able to reach a resolution of your case.
The thing is, once you file for divorce, you open up a whole lot of options for yourself. Probably most importantly, you make a pendente lite hearing a possibility. At pendente lite (Latin for ‘while the litigation is pending’), you can ask for child custody, child support, and spousal support on a temporary basis.
Receiving that money can be a game changer, because it can help you move out of a toxic home, continue to pay your own legal counsel, and take care of your children during the pendency of the case. In a negotiated case, there’s no paying of support unless and until an agreement is reached.
If you waste all of your resources trying to play softball, you may find that your ability to file for divorce on a contested basis is diminished. It’s often far better to act decisively and aggressively at the beginning to show him you’re serious and to make sure that your needs are met.
Chances are, once he sees that you’re serious – and that there’s no way he can stop you from getting a divorce – he will start to cooperate. Chances are good that he was mostly hoping to make you feel so stuck that you accepted the status quo, and that he held on to as much of “his” money as possible for as long as possible. But once he starts having to pay his own lawyer to defend against this divorce action, you may find that he’s much more amenable to settlement discussions.
After all, certain issues – child support, division of retirement accounts, the marital residence, etc – aren’t really difficult to determine. Sure, we do a fair amount of litigation over complicated issues, like child custody and spousal support, but there are some other issues that are more or less settled.
Look, it isn’t easy. It’s going to be more expensive up front. But it’s also going to be aggressive, it’s going to ensure that your dollars are spent actually moving the case forward, and it will help you get some support in place to help maintain yourself through the case. It’ll show him you’re serious, it’ll show him you’re savvy, and it’ll still leave room for negotiation later on if he comes to his senses and starts to realize that he’s going to have to give you your marital share of the assets.
It’s especially true that, where money is tight, you’ve got to use it to its full effect. Don’t be seduced by a lower retainer fee when negotiating an agreement is only going to end up with you having spent your trust account dollars on negotiations that have gone nowhere.
For more information, or to attend one of our upcoming divorce seminars for Virginia women, visit our website or give us a call at 757-425-5200.