Substance Abuse in Divorce and Custody Cases

Posted on Jul 2, 2014 by Katie Carter

All sorts of reasons drive couples to divorce, and there’s really not a “one size fits all” answer. Virginia is both a fault and a no fault state, which means that you really don’t have to have a reason to qualify to get a divorce. (Though, of course, I’m not suggesting that you don’t have a reason!) Certain people do have “reasons” that the law specifically recognizes as legitimate enough to end a marriage. In Virginia, we recognize several fault based reasons for divorce, including adultery, sodomy, buggery, felony conviction, cruelty, apprehension of bodily hurt, desertion, and abandonment.

Just because your reasons for divorce don’t fit under the heading of one of those definitions of fault based grounds qualifying you for divorce doesn’t mean you can’t get divorced. We also recognize no fault grounds for divorce, which means that even if you can’t specifically list one of those grounds, you can still get a divorce.

One of the reasons that couples divorce, even though it’s not something that the statute specifically provides as one of the possible grounds for fault based divorce, is substance abuse.

In a lot of ways, substance abuse is very similar to adultery. One person (or both people) looks outside the marriage to find a different kind of comfort than what’s provided at home. Is it the problem itself? Or only the symptom that something else is wrong? Does it even matter? Regardless, the offending spouse is looking to a third party for something outside of the marriage. The other spouse feels violated, cheated on, and betrayed. Trust is violated. Eventually, one party decides to call it quits.

Substance abuse isn’t a fault based ground for divorce in Virginia. What do I use as my grounds?

It’s true that Virginia doesn’t specifically list substance abuse as a grounds for fault based divorce, but that doesn’t mean that you can’t use fault based grounds in some cases. Sometimes, substance abuse problems lead to different grounds. Because of a substance abuse problem, there may also be domestic violence. In that kind of case, you could use cruelty or apprehension of bodily hurt as your grounds.

Sometimes, we also use constructive desertion as grounds in cases like these. Constructive desertion happens when one person makes the living conditions so intolerable that the other person can’t continue living there. When they have to leave the home because of the conditions the other spouse created, we can file for fault based divorce by citing constructive desertion. It’s a little tricky, though, because you have to actually file for divorce on the day you leave the home to preserve your right to use those grounds, so if you’re thinking that this is something you’ll want to do, you should talk to an attorney as soon as possible.

Of course, you definitely don’t have to use fault based grounds! Just because the statute very narrowly defines what qualifies as fault based divorce, it doesn’t mean you can’t get divorced. You always file for a no fault divorce. That may be what you want to do, anyway, because no fault divorces tend to be much quicker and less expensive.

Because he’s a substance abuser, will I get more?

Before we talk in more detail about what happens in divorce cases where substance abuse is an issue, I want to talk a little bit about how divorce cases in Virginia work. You can get divorced in essentially two different ways: you either settle your divorce by signing a legal contract called a separation agreement, or you litigate your divorce in the court system.

Substance Abuse in Divorce Cases

You can negotiate a separation agreement in a number of different ways. You can do it by hiring an attorney, going to mediation, moving forward with a collaborative divorce, or even by drafting and signing an agreement on your own, without hiring any kind of professional to help you. When you negotiate an agreement, you have a lot of freedom. What matters is pretty much just what you say matters, so substance abuse (whether yours or his) really isn’t going to be an issue. You and your soon to be ex are going to come up with some kind of agreement that settles the assets and liabilities in your marriage, and how the “stuff” is divided really has nothing to do with whether anyone has abused any substances. As a partner to the marriage, you deserve your marital share.

A separation agreement case is easy. If you don’t like the agreement that you’re presented with, you don’t sign it. You negotiate, revise, and adjust terms until they suit your needs. Most separation agreements reflect some sort of property division close to 50/50 between husband and wife, and that’s out of necessity—if the agreement wasn’t close to 50/50, there would be no point signing it. The parties would take their chances in court and hope to end up getting more. Separation agreement cases are uncontested no fault cases, which are usually the cheapest and the easiest because there’s nothing to prove and you don’t have to enlist the support of a judge to determine how everything will be divided in the middle of a contested divorce trial.

In a litigated divorce, on the other hand, the judge ultimately has the power to decide how everything will be divided. In a divorce trial, the judge will listen to evidence and witnesses and, eventually, determine how everything will be split between husband and wife. A fault based divorce, whether you end up using constructive desertion or cruelty or apprehension of bodily hurt or whatever, is automatically litigated, because you have to prove to the judge that your fault based grounds exist.

The judge isn’t going to automatically penalize you because you or your husband have a substance abuse problem. In fact, as far as your divorce case goes, it’s pretty unlikely that substance abuse will factor in at all, though it is possible. The way the statute is written, the judge can consider negative and positive monetary and nonmonetary contributions to the family. A substance abuse problem would probably qualify as both a negative monetary and nonmonetary contribution. It’s possible that these problems led to the breakdown of the marriage, too. And it’s possible that the judge could use these things to make an equitable distribution award that favors one party over the other. Except in very, very extreme cases, it’s probably unlikely, but you should know that it’s a possibility.

Substance abuse in custody cases

Custody cases (or divorce cases where custody is also an issue) are entirely different from divorce cases, because the court isn’t looking at what’s fair to you or your husband. It isn’t about you or your husband at all. It’s about the children, and, ultimately, what’s in their best interests.

The court absolutely is going to consider any evidence of substance abuse that is presented, and question the ability of each parent to adequately provide the needs of the child. Obviously, it’s probably not in a child’s best interests to be in the primary physical custody of a person with a substance abuse problem, particularly if the problem is severe.

We see a lot of different ways of dealing with substance abuse problems. In separation agreement cases, we sometimes ask that the offending parent abstain from alcoholic beverages while the child is in his care (often also including 24-28 hours before and after). That’s definitely something you can ask for, if you’re trying to keep your custody case out of the courts but you’re concerned about your child’s other parent’s ability to truly care for the child. We can also ask that he not take the child certain places or allow the child in the company of certain people.

Sometimes, there’s really no choice but to go to court, especially if the child’s other parent doesn’t accept limitations on custody and visitation. As far as custody cases go, substance abuse is incredibly serious, and can definitely have an impact on custody and visitation. For information about how it could impact your case, you should talk to an attorney one on one.

What if I have a substance abuse problem?

For the most part, the same analysis applies to your substance abuse problem as to your husband’s. It’s unlikely that he will get more of the marital assets than you as a result of your substance abuse problem (though, of course, it is possible). Remember that the judge has the ability to consider the fault of each party in relation to the breakdown of the marriage, and that the judge can use that fault to award a particular distribution of marital property. It’s probably not very likely, except in very extreme cases. Usually, fault doesn’t play too dramatic of a role in property distribution, because the judge doesn’t really think that you deserve less of what you earned just because you made some bad decisions. In extreme cases, it’s possible, but in most cases it’s probably pretty likely that your property distribution will be close to 50/50.

In custody cases, your substance abuse can be very relevant, particularly if the judge feels like it negatively impacts your ability to use good judgment in caring for your child. It doesn’t have to be the end of the world, but it’s definitely a big red flag.

If you have a substance abuse problem, the best course of action is to seek immediate treatment. No matter what, it’s best to get professional help as soon as possible to avoid losing custody of your child. If you get healthier, your chances of having custody or visitation increase exponentially. Not only that, but you’ll also want to admit your problems to the judge. If you have an open and honest discussion with the judge about the problems you’ve had and all the work you’ve done to address them, you do three things: (1) you prevent your child’s father from being the one to bring it up and make you look like the bad guy, (2) you show the judge that you recognize your shortcomings and are willing to do anything in your power to address them, and (3) you show your ability to put the child’s needs first. We have all made mistakes, but it’s important to own your mistakes in court and show the judge your willingness to change.

The most important thing for you to do is to get help. Now is a good time, even if you’ve got a divorce or custody case pending. The last thing you want is for your problem to get out in court and have to admit to the judge that you’re really not currently doing anything to improve. This kind of case isn’t unusual, and you shouldn’t be ashamed. Ask for help. There are tons of places where you can get it.

We’ve had this kind of case before. In fact, we’ve had a number of them. One story comes to my mind, though. We had a client several years back who had custody of her child. She had a substance abuse problem, and noticed that it was getting progressively worse. She started to worry for the child, and gave the child to her father. Afterwards, she went on a binge-fest. She tried all sorts of drugs and alcohol, and sort of went off the grid for awhile. The child was safely in dad’s care, and had no knowledge of what was going on with mom.

Then, mom went to rehab. She got sober, and quit using any kind of drugs or alcohol. She told us it was because of her child, and by that time, of course, she wanted her child back. We filed a case for her. Dad, not surprisingly, came in, telling everyone who would listen that she was a druggie and an alcoholic and an all around terrible parent. We told the judge about what had happened, how she had entrusted the child to Dad when she felt she wasn’t up to the task, and we even showed a pie chart that demonstrated how much time dad had spent with the child versus mom. Since, up until the binge fest, mom had primary custody of the child, the pie chart was mostly full of time with mom, and a little teeny piece of the pie was dad’s time.

The judge was impressed that mom had known when she needed to get help, and was pleased that she had gotten her life back in order. He gave custody back to mom.

My point here is just that having a substance abuse problem isn’t automatically the end of your chance of winning a custody case. If you suffer from a substance abuse problem, you should talk to an attorney and get professional help. If you take care of yourself now, you’ll be better able to take care of your child later.

If you need help, don’t be afraid to ask for it. Please feel free to give our office a call at (757) 425-5200 to schedule a confidential, one hour consultation with one of our attorneys.