Should I agree to his terms in our Virginia divorce?

Posted on Jul 17, 2020 by Katie Carter

It often happens that, before I see a client in my office, she and her husband and/or child’s father are negotiating some behind the scenes. Though I often think that’s a good thing (hey, cheaper to agree yourselves than to pay me to negotiate it for you!), it can also be frustrating when a client and her child’s father have pre-agreed on some things that, on balance, she would be unwise to actually agree to. Without understanding the law or the consequences of her choices, she just blindly agrees.

Well, I get it. It happens. For a lot of reasons, but one I hear super often is just that she wanted the conflict to be resolved. That worrying about her financial future and the safety of her children was just too much, and to reach an agreement on a particular item could resolve it. Also, without understanding all the potential implications, it may have even seemed simpler to her at the time than it actually is, so that sort of compounds the problem.

Whatever you do, I would advise you to please not sign anything until you’ve had it reviewed by an attorney, so that you can have these important discussions about consequences. It’s definitely wise to assume that there may be some that you haven’t yet considered, and talking to someone now may save you trouble later on down the line (not to mention money, in the event you and your soon to be ex wind up litigating any of these issues).

I think it’s also smart to not actually agree to anything ahead of time. Better to say, “That’s an idea! Let me think about it, and I’ll get back to you,” then agree and run the risk of spoiling the deal because of sour grapes on his part. If he thinks he’s got some particular term in the bag, and then you revoke your verbal agreement, he may be angry or frustrated. He may accuse you of fighting unfairly. He may withdraw his agreement to other terms that he previously agreed to. It can really upset the balance of the entire negotiation. Better, I think, to proceed more carefully, cautiously, and thoughtfully.

Still, discussions are good things to have, especially if they keep the dialogue open and foster a sense of responsibility and connection between the two of you.

If you’re nervous now, that’s okay. I’ve written in a couple key considerations here that I think you’d do well to consider and discuss, both with your attorney and with your child’s father, as necessary, as things progress.

A couple questions to ask, before you agree (tentatively or in writing) to any provisions suggested by your child’s father:

1. Will the situation change later?

It’s easy to agree to something (especially if, in exchange, you get something you want) as long as the circumstances stay the same. But what if they don’t? What if you remarry? What if you move? What if you’re fired?

Good agreements take these eventualities into account, and don’t fall apart (or bind you unfairly) when the circumstances change.
A good example? Parents like to agree to split days on Christmas or children’s birthdays. I get it; it allows both parents time to see the children on an important day. But, on balance, it may be tricky if one of both of you moves, or if you remarry and your new husband has family that needs to be visited on Christmas day. I’m not saying that you can’t agree to it, just that you should really consider whether something else wouldn’t set you up for more success in the coming years.

2. How would the law apply here?

What IS the law on this particular point? Do you even know? It may be that the law is more lenient (or more strict) than you yourselves are being. It may be that you’re compromising on a point that you don’t have to compromise on!

You see, when the law is X, agreeing to anything else can be done. But when you’d prefer to have X, why would you do it? He can’t press you too hard on that particular point because the law is X, so, even if you don’t wind up compromising, he can’t hold it against you.

Say you’ve agreed to split the kids medical expenses 50/50. But you make $50,000 and he makes $150,000. So, splitting the cost of those braces ($$$) costs you, on a percentage basis, more than it costs him. You could agree to split the expenses this way.

BUT – do you even know what the law is? The law provides that you’ll split these costs pro rata – which is to say, PROPORTIONALLY based on your incomes. That means, in the case of braces, you’d pay only 25% of the costs, as opposed to 50%! He, because he earns more, will pay 75%.

It’s not a compromise, either – it’s the law.

3. Would the court order this provision?

Similarly to #2, I’d also encourage you to have a conversation with your attorney about what the court would and would not do, if this case were litigated. That’s an important thing to know, too, because it can help you decide whether to push a particular point or just agree.

Judges are more fond of some provisions than others, and we see some trends across cases. We can tell you whether we think that a certain provision is more or less likely to be ordered by the court, which can be helpful when it comes to informing your discussions on what to do.

A good example? A client of ours was discussing the other day the possibility of agreeing to a provision that wouldn’t allow her to relocate within a certain number of miles until after the children turned 18 (the youngest is 8, so for a full decade). She had already relocated, so admittedly it was a fairly large geographic area, but I think this is one of those things that a judge would be unlikely to order.

If the judge would order it, it may be worth considering agreeing – because you may wind up with that provision in place anyway. In this case, though, it’s probably unlikely – so easier for you to waffle or refuse to agree to those particular terms, since he knows (or will, once he consults with his attorney) that getting these provisions in place is by no means guaranteed.

It’s great that you’re asking these questions before issues come up, and I hope you’re finding all the details you need here. Divorce is complicated and can take many different forms, so even now, almost ten years into my practice, I hear new issues. So, that’s really just to say that I know I can’t be completely exhaustive here, but I hope I’ve given you some good food for thought.

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