Litigated Virginia Divorce

Posted on Sep 10, 2018 by Katie Carter

I spend a lot of time talking here about separation agreements, uncontested divorces, and how, in general, it’s often ideal to avoid going to court to have your assets and liabilities divided. In most cases, that’s quite true.

But “most cases” is not every case, and you have to think critically about your case, and your unique situation, when figuring out what the best course of action for you, in your specific circumstances, might be. An uncontested divorce, though ideal, may not always be possible. And, after all, there are many, many situations where litigation is necessary.

After all, where there’s a disagreement over an asset or an entitlement that’s worth tens of thousands of dollars (or more!), it may be worth it to go to court to let a judge determine how it should be divided. After all, if you can’t reach an agreement, you may not have any other option.

I’ll say, too, that, in many, many cases, clients come in telling me that they just know they won’t be able to settle. To me, what a client says about settlement may or may not be all that accurate. In the beginning, in almost every case, things are at their most difficult because tensions are so high. Everyone is afraid about how they’ll pay their bills post divorce. Well, I say “everyone,” and, the truth is, I’ve never actually represented a man in a divorce or custody case (I mean, obviously!), but I do assume that they are worried as well. In some cases, I’ve heard specifically from their attorneys that they’re worried — how they’ll survive on their retirement after the wife gets her share, how they’ll afford to refinance the house into their name, how long they can continue to work until retirement, that kind of thing. So I do honestly think it’s pretty safe to say that husbands and wives are all very, very worried about how they’ll fund their lives post divorce. And that’s a reasonable fear.

But it’s also just that: a fear.

And it’s important to take the time, in advance, to come up with a strategy designed to move your goals forward. For some people, that’s an uncontested divorce. For others, filing for divorce might be more appropriate. It really all depends on the scenario and making the best decision for you under the circumstances.

Today, I want to talk about why you might file on fault — so you can tell, for yourself, whether it’s something you might need to consider (or whether you might be better off letting the fear of a contested divorce go). It’s not a “one size fits all” solution. It also doesn’t mean that you’re doomed to follow this contested path forever. Many people file for divorce on fault (for very good reasons) and then, later on, are able to reach an agreement, so their case is never determined in front of a judge. But why? Why might you make that decision? (And why might it be a very good one under the circumstances?)

1. He won’t agree to sign anything.

If he just won’t sign, there’s nothing else we can do. There’s no sense wasting a bunch of time, or getting frustrated. He doesn’t have to want the divorce for us to be able to get it finalized, but that doesn’t mean he has to make it easy on you to get out, either.

If he won’t sign, we don’t have to negotiate. We can just go ahead and file for a contested divorce (assuming, of course that (1) you’ve either already been separated for the statutory period, or (2) you have fault based grounds for divorce that will allow you to file immediately) and force him to respond. Chances are good that, if you don’t meet one or more of these other criteria, you’ll still be able to negotiate an agreement, but you may need to shock him into cooperating with the divorce process.

2. He has cut you off from access to the marital money.

It happens. It happens a lot. Once you tell him you’re separated, either he decides or his attorney tells him to cut you off from access to the money.

The reason why is simple. Post separation, anything a party earns, purchases, or acquires is theirs separately. So, he’s thinking, “It’s all mine, and not hers.” He doesn’t care about household bills or how you’ll put gas in your car; he’s thinking he wants access to all of his separate money.

So, what can you do? Well, if he’s not being cooperative, you have very little choice. You have to file for divorce so that you can have a pendente lite  (you pronounce it pen – den – tay – lee — tay) hearing to get temporary child and spousal support determined — and then you can use that to pay your bills.

I get it, it’s hard in this type of situation. The problem is that you DON’T have money, but hiring an attorney to begin a contested divorce…well, it costs money. But there’s not many other choices, unless you’re on the verge of signing an agreement that’ll give you the money you need to support your life financially post-separation.

3. You don’t know what assets are there, or where they came from.

After you file for divorce, you can go through a process called discovery. Discovery is what we use to determine what the marital assets and liabilities are, and it’s really important in cases where we don’t know what the assets are. If your husband has been the one to manage the bills and the expenses, and you don’t have any idea what your debts are, how much is in the retirement, or the balance on your mortgage statement… Well, it might be a good idea to ahead and file for divorce.

Similarly, if you DO know what assets are there, but aren’t sure how those assets were funded (like, there’s a portion that might be separate, and you just don’t know what it is) it might be worth filing. I have a case like that now, where my client’s husband has a brother who is super well off. Over the course of the marriage, he funded a bunch of things in his brother’s, my client’s husband’s, name (it is my understanding that the majority of this is in an effort to avoid tax consequences to himself). We’re really confused about what’s what, and what’s even true, and whether my client has any interest in any of it… So, in that kind of case, it makes sense that you’d conduct discovery so that you can request documents and figure out, essentially, which way is up.

I’m an attorney and I’m fairly savvy. I’ve seen a lot before. But I’m not omniscient, no matter how hard I try, and I can’t just tell what your assets and liabilities are. I need some information from you — preferably statements! — so I can give good advice and tell you what your best course of action might be under the circumstances.

Filing for divorce can be an important strategic decision, and, as a practical point, it’s good to be aware of all the tools in your arsenal. I wouldn’t suggest that you file just for the heck of it — after all, it is time consuming and often quite expensive — but it’s a option that, if the facts support is, can be executed well and can help serve your interests best.

For more information or to discuss your options, give our office a call at 757-425-5200.