Maybe you suspect things will be difficult. Maybe he’s refusing outright to sign anything that you prepare. Maybe there’s legitimately nothing to divide in your divorce.
For whatever reason, you tell your attorney, “I don’t want anything from him – anything at all – except a divorce.”
When people tell me that, it makes me think a couple of things. Probably, it’s fairly contentious. Also, I worry that she’s selling herself short – after all, who wants to just GIVE UP on things that they’re entitled to receive? It also clues me in that I need to really make an effort here to explain what’s going on because, in a lot of ways, divorce is counterintuitive.
“I just want a divorce.”
A lot of people would say, ultimately, that they just want the divorce itself. But that may be part of the problem, right?
If your soon to be ex doesn’t want to give you a divorce, he may fight it tooth and nail, even if property division isn’t part of the equation.
In Virginia, you have to either (1) negotiate an agreement with your spouse, or (2) go to court and let the judge decide how all of your assets, liabilities, and responsibilities will be divided between the two of you. You don’t have to hire attorneys, you don’t have to ask for anything specifically, but if you don’t have an agreement, you have to go to court.
If you go to court, it’s a contested case. It takes longer, it costs more, and it makes everything a lot more complicated. It’s probably more than you can handle on your own, without hiring an attorney. And though your spouse not agreeing to the divorce doesn’t mean that you can’t get one – he can’t trap you in the marriage – he CAN make it take a whole heck of a lot longer and cost a ton more than it has to cost.
It could be, rather than dividing the assets and liabilities, that whether to get a divorce is the issue, especially if your partner is determined to do everything he can to prevent the divorce from being entered. In that case, it doesn’t really matter that you’re not asking for anything else, because it’s the divorce that’s the issue, and that is going to make your partner behave erratically or illogically.
An attorney – even a very good, or impossibly perfect attorney – can’t stop him from following court procedures and slowing the divorce down to a halt. The attorney can hold him accountable if he doesn’t follow the rules, but there are lots of ways to both follow the rules and slow a case way, way down.
If your spouse doesn’t want the divorce to be granted, things are probably going to be more difficult than the average case. It may even be a high conflict divorce. In that case, though, why not ask for division of the assets? It’s not like walking away from all of those things is sweetening the deal enough for him to let you go, so – why do it? Right?
I’m okay with walking away from the assets.
Women tell me all the time that they’re okay with taking nothing from their marriages. While it may sound good, though, it’s a dangerous attitude.
In most marriages, there’s tens of thousands – if not hundreds of thousands or even millions – of dollars worth of assets to divide. After all, it’s everything you spent most of your adulthood accumulating. It’s retirement accounts, bank accounts, cars, stocks, and more – plus support (both spousal and child), as well as the things that can’t be quantified in dollar amounts, like custody and visitation.
If you have kids, you – quite simply – can’t walk away with nothing but the divorce. You’ll have to handle custody and visitation, at a minimum. And I highly recommend that you take an active role in that part of the proceedings.
If you don’t have kids, maybe it theoretically possible that you could walk away from all the assets. Maybe you even feel like the retirement isn’t yours to take. But I would caution you that this can be a very, very costly mistake. While retirement funds, specifically, might feel sort of hypothetical at this point, years before you actually retire, you may find, later on, that you can’t make enough to accommodate for the lost of what should have been rightfully yours during the divorce.
It’s not just the straight dollar amount that your marital interest in those accounts represents; it’s the way that money would grow over the years between now and whenever you retire. Are you sure you can walk away from that? Can you reasonably expect to replace that money? Are you otherwise on track for retirement? Spoiler alert: most people aren’t.
And then support – another huge issue, right? Sure, husbands don’t really want to pay it, and can make it difficult for wives who need to receive it. But can you survive without it? Can you really walk away from that potential money?
Child support, too – maybe you don’t “need” it in the sense that you don’t have a medically complex child and you can afford the occasional new pair of shoes. But, even if you can meet the child’s needs most of the time, it’s difficult on your own. Are you really serving the best interests of the child if you don’t take the child support you’d otherwise be legally entitled to receive?
And let’s say you don’t need it. All your needs are met. What about college? What if you could take that child support money and stash it away in an IRA for your child instead. Would you be better served – or would your child be better served – having the money saved for them in that way, or just waived away? I’d argue that, in every case, you should take every penny of the child support you can. It’s not for you. It’s for your kid(s).
Walk away from what you spent your marriage accumulating? I don’t recommend it.
But we have nothing to divide anyway.
Maybe there IS nothing. That’s not usual, of course, because, even in the cases where there’s not very much, there are often cars, bank accounts, or, even, negative assets, like credit cards, that are technically marital in nature and need to be divided.
The court doesn’t know what you have. So, even if there’s nothing, you’ll either need an agreement or a court order acknowledging that you have nothing in order to finalize your divorce. For the other stuff, you’ll need to dispose of it, too, in an agreement or court order.
Unless and until you have a separation agreement in place, it’s a contested divorce. Contested doesn’t necessarily mean that you don’t agree, it just means that you haven’t memorialized that agreement in a separation agreement yet. Until you do, you either (1) still have to get that piece of the puzzle in place, or (2) you have to go to court and let the judge do it.
I’ll give you a hint, though: one of those ways costs more – and takes longer – than the other.
It’s not enough, suffice it to say, that all you want is a divorce. It’s not that simple. Not by a long shot. You’ll have to either enter into a separation agreement (even if you have literally nothing) or go to court and let a judge divide your assets, liabilities, and responsibilities. Technically, it’s possible to do all your agreeing in a final divorce decree, rather than a formal separation agreement, but it’s fairly unusual and, in any case, you’ll still have to both agree.
If he doesn’t agree, that can be the beginning of the end. There’s no other alternative than to file a contested divorce and move forward with a full trial. So, although I understand what you’re saying, it’s often just not that simple.
For more information, to request a copy of our divorce book for Virginia women, or to attend a monthly divorce seminar, visit our website at hoflaw.com or give us a call at 757-425-5200.