Recently, a woman responded to one of our Facebook posts about our free divorce and custody books, saying, simply, “Step One: Don’t get married.”
I’m sure she thought she was being cute and clever. Certainly, if you don’t get married, you don’t need to get divorced.
And I’m sure that, if you’re looking divorce square in the face, you probably have thought longingly of not having to go through the process. I get it. It’s scary. It’s a big deal. And, in some cases, it takes a really long time and it costs a lot of money.
But that doesn’t change this basic fact: Divorce is designed to PROTECT spouses.
Wait, what? How is divorce designed to protect me?
If you followed this woman’s advice and just didn’t get married, there are no protections for you under the law. Buy a house with a boyfriend and then break up? If it’s in his name, it’s his. It doesn’t really matter if you contributed; you weren’t married, and it’s not presumed to be marital property.
No court can help you here, either. There’s no laws supporting it. There’s no “common law marriage” or anything like that in Virginia, either, no matter how long you’ve been together, how you represented yourself to the public, or anything like that. There’s no such thing as “we’re just like a married couple”. In fact, that is one of those things that people say that really frustrate me. You’re not “just like” a married couple or “practically” married; you are either married, or you’re not, and there is no in between.
Aside from the religious implications of marriage, it’s an important social and economic contract. It gives your relationship certain protections under the law that it wouldn’t have if you were just boyfriend and girlfriend (or boyfriend and boyfriend or girlfriend and girlfriend).
And, another thing? Marriage protects the LESSER earning spouse most.
No way. I’m the lesser earning spouse, and I don’t feel protected.
I get it. In a lot of ways, a higher earning spouse can weaponize the process. I’m not saying it’s perfect. The fact that he can stall, he can pay a lot more in attorney’s fees, or even just hire a better lawyer (or hire a lawyer at all) IS a factor in his favor, and one that husbands love to wield against their wives. Did I say the system was perfect? No. I just said its designed to protect a lesser earning spouse.
Think about it. If you weren’t married, you could just walk away. And a higher earning spouse, in most circumstances, probably would. There’d be no division of assets. There’d be no spousal support. There’d be no sharing of retirement or bank accounts. It would be “I earned this, and this is mine,” and “You earned nothing, so nothing is yours.”
If you feel like your husband is going to abuse the system to manipulate your divorce, you’re not alone. It’s a scary process, and there are lots of opportunities to try to take advantage of someone who earns less. I think it’s important to keep a couple of things in mind when you feel like he’s behaving his ugliest. One, he genuinely feels like what he earned is his, and you have no share in it. And he’ll likely tell you so. A lot of times, I find that husbands say that their wives aren’t entitled to things, and they often believe it, without checking or verifying. If you’re feeling stressed because he has told you that you won’t receive something, you need to independently verify this. His retirement is often a big one. Even though it was earned through his work, if it was earned during the marriage, it’s marital property! Don’t let him convince you that resistance is futile, or that you have to accept less than you believe is your due. Talk to someone! Ask questions!
Two, ignorance of the process is SO common. I get that, too. It’s hard to research, and it’s hard to know what to trust. Especially on the internet! You don’t know where the information is coming from, who wrote it, when it was written, and whether it even applies to your situation. That’s why we wrote our divorce and custody books! This way, Virginia women will always have access to up to date, Virginia specific divorce and custody information. Need more? Sure, no problem! We have divorce and custody seminars, too, so you can even ask questions live to a licensed, experienced attorney before you schedule a consult.
What protections does divorce give me under the law?
It’s a scary process, and sometimes a long and expensive one. But he can’t walk out the door and leave you with nothing (unless you had nothing to begin with, more on that later).
In a divorce, we’ll divide all the marital assets. The personal property, the retirement accounts, the bank accounts, the real estate – everything is divided. If it was earned during the marriage, it’s marital property and will be divided. (Though things earned before the marriage, and things gifted to or inherited by one spouse before or during the marriage are separate, and not divided in divorce.)
What about debt? The assets are in his name, and the debts are in my name!
ANYTHING earned, purchased, or acquired during the marriage is divided, and that includes debt. The debts are going to be divided just like assets. The assumption is that they’ll be divided something close to 50/50 (though it’s possible we could make an argument that they should be divided proportionally based on income, too), but in the event that the debts were incurred by one spouse for a non-family-related purpose (like, if he’s wining and dining a mistress, or if he’s got a gambling or other addiction or something like that) we could potentially argue, with the evidence from the credit card statement, that it should be allocated to him.
It doesn’t matter how anything is titled; if it was earned, purchased, or acquired during the marriage, it’s marital property. Debt in your name? It’s marital if it was acquired during the marriage. Assets in his name only? It’s marital if it was acquired during the marriage.
What if we have nothing at all?
That can happen, especially in a very short term marriage. There’s still the possibility of support, if there’s a disparity in your incomes, so don’t forget about that.
In Virginia, you need either a separation agreement or a divorce trial in front of a judge to specifically separate the assets and liabilities. In a case with no real assets or liabilities, it should be fairly easy to get an agreement in place – but you’ll still need one. We need to identify that there are no assets, which may seem counterintuitive, but the court doesn’t know what you have or don’t unless you put it in an agreement.
An agreement is also insulation against future cases being brought against either of you. By specifically saying “we have no retirement” it sets forth the status quo as it exists.
In short? A divorce may not feel like a protection, but it is. That’s what it’s designed for, and, even though it can be quite the process to get everything in place, that’s what it’ll do. If you’re worried about protecting yourself or making the best decisions possible, give our office a call to set up a consultation at 757-425-5200, request a divorce or custody book, or attend one of our live seminars.
Not getting married is, in my opinion, not a solution at all, but actually a much bigger problem that would leave you without valuable legal protections.