A lot of the decisions you make in the early stages of your divorce are really important because, strategically, they go a long way towards shaping the way your divorce will ultimately end up. That’s why we recommend, before you do anything hastily, that you do everything you can to gather as much information as possible as early as possible.
The decisions you make now are fundamental decisions, and they have a lot to do with your outcome and your sense of satisfaction with the system. Their importance really can’t be overstated. Even though you think you’ve only just gotten into it and you have awhile before you have to make any major decisions, that’s absolutely not true. You’ll have to start answering questions very early on.
Here, I’ve got a list of the 5 major decisions you’ll have to make early on in the divorce process.
1. Should I hire an attorney or not?
One of the biggest decisions you’ll have to make early on is whether you’ll hire an attorney to represent you in your case or whether you’ll move forward as a “pro se” litigant. “Pro se” is a Latin term that we use to describe people who aren’t represented by counsel.
In Virginia, you don’t have to hire an attorney. You can, theoretically at least, do everything on your own. You’re not required to hire an attorney if you don’t want one.
That being said, not hiring an attorney may or may not be the right decision for you. It will definitely not hurt you to hire an attorney to represent your interests, but there are definitely cases where hiring an attorney is more necessary than others.
If your case is contested (meaning that you and your husband don’t seem to be able to reach an agreement about how all the assets, liabilities, and responsibilities in the marriage will be divided), it will be particularly difficult to litigate your divorce on your own. In these types of cases, I definitely recommend that you hire an attorney.
If you’re involved in a litigated divorce (one that is being fought out in court in front of a judge), you’re going to have to file a lot of paperwork with the court. If the paperwork isn’t submitted in the proper form, the court will reject it. There are very few resources out there available to help people who don’t have attorneys, so it may be difficult for you to figure out how to correct your documents. Not only that, but you’ll have to make a number of appearances in court, and it’s difficult to learn how to make the oral arguments you’ll need to make to prove your case, particularly if your husband is represented by an attorney and you are not. Still, it’s up to you
If, on the other hand, your case is uncontested (meaning that you and your husband agree about how things should be divided and are moving towards signing, or have already signed, a separation agreement), it will be much easier for you to represent yourself.
2. Fault or no fault divorce
You’ll also have to decide, relatively early on, whether you want to pursue a fault-based divorce or a no fault divorce.
We talked earlier about the difference between a contested and an uncontested divorce. In a contested divorce, you litigate in front of the judge, and the judge makes the ultimate decision regarding how everything will be divided. In an uncontested divorce, on the other hand, you negotiate out of court, and you and your husband are responsible for deciding between yourselves how everything will be divided.
If you have a fault based divorce, you’ll file on specific fault based grounds. The fault based grounds recognized in Virginia are adultery, sodomy, buggery, cruelty, apprehension of bodily hurt, felony conviction, desertion, and abandonment. If you think you may qualify for a fault based divorce, read on—and feel free to schedule an appointment to talk to an attorney about your unique circumstances.
A fault based divorce is always litigated, because you have to go in front of the judge to try to prove that your fault-based grounds exist. Each one has a burden of proof that you must meet in order to prove to the court that you can use these grounds to get divorced. So, even if you and your husband can reach an agreement regarding how everything will be divided, you’ll have to actually go to court to prove your fault based grounds if you want your divorce to be granted using those grounds.
A no fault divorce can be contested or uncontested. Either you can reach an agreement regarding how your assets and liabilities will be divided, or you can’t. If you can, you’ll have an uncontested no fault divorce, and if you can’t, you’ll have a contested no fault divorce. In a contested no fault divorce, you don’t have to put on evidence or prove that you have no fault grounds; you’ll just have to present evidence to help the judge decide how your assets and liabilities should be divided. The judge has the ultimate discretion, though.
3. How much money do I want to spend?
In the beginning of the divorce process, you’ll also have to start thinking about how your choices will affect your bottom line. Depending on the type of divorce you pursue, it will definitely have an impact on how much your divorce costs you to obtain.
In most cases, it’s really not possible to tell you exactly how much your divorce is going to cost. Divorces vary, and it’s not really a one size fits all kind of situation. Still, a lot of the choices you make have a direct impact on the cost of your divorce, so the choices you make can really affect your bottom line.
Believe it or not, you have a lot of choice in the matter, even though there are things that you can’t control, like how far he’s willing to take things. Still, the choices you make at the beginning of your divorce set the tone and have a serious impact on the total cost of your divorce, so it’s good to keep in mind that your choices and your behavior will affect the way this all works out. Think to yourself: is this really worth fighting over? Because, if it is, it’s going to cost you.
So, what choices do you have to make now? We’ve already talked about contested versus uncontested, fault based versus no fault. Obviously, there’s a difference in cost between all of these options.
Divorces that are played out in court are the most expensive. Since you have to prove your fault based grounds on top of arguing how everything should be divided, a contested fault based divorce is probably the most expensive. An uncontested no fault divorce, on the other hand, is one of your least expensive options.
You can also look into what attorneys call “alternative dispute resolution,” or ADR for short. Collaborative divorce and mediation are forms of alternative dispute resolution. If you want to learn more about these types of divorce, click here.
Almost everything costs less than a litigated divorce, but you’ll have to talk to mediators and collaborative attorneys to find out what your options may be and how much it will cost you. It’s best to do the research now, though!
4. Live separate together or live separate and apart
When you and your child’s father separate, you’ll have to decide whether you want to live separately in the same home or in different homes. For a lot of couples, because of financial considerations, there really isn’t much of a choice at all.
Most judges accept that, for some couples, living separate and apart in the same home is a necessity, but it’s still risky. The danger is that, after separating and living in the same home, the judge might find that your testimony is insufficient and that you haven’t been living separate and apart. If that happens, your divorce complaint will be dismissed and you’ll have to start your one year of separation all over again. Usually, it’s fine, but you should be aware that this is a risk that you take.
In Virginia, living separate and apart is all about cohabitation, which is a fancy legal term for living together as husband and wife. When you stop cohabitating, you stop behaving the way a husband and wife would be expected to behave. That means you stop cooking, cleaning, and doing laundry for each other. It means you stop wearing wedding rings, attending church together, and celebrating special events or exchanging gifts (like for birthdays and anniversaries).
Financially, you may have no other choice. In most cases, it’s totally fine to live together, so long as you’re making every effort to stop cohabitating. For more information about what you should be doing in the home, click here.
5. Custody
Custody is one of the most complicated parts of the entire divorce process. It’s emotionally driven, and the fights can get nasty. Obviously, you really can’t put a price on your child, so some of the biggest, knock down, drag out fights we’ve seen are over custody. Even though other things, like retirement accounts and real estate, have significant value, their value is finite and determinable in a way that it is impossible to do with children.
Still, to avoid turning up the dial on the tension level in your divorce, it’s a good idea to know how custody and visitation works. The most important thing to remember is that custody and visitation is modifiable until the child turns 18 so, no matter what you “get” in your divorce, you can always go back to court later to re-litigate the issue. That may be comforting and it may be discouraging, but, either way, you need to know.
It’s a really, really bad idea to give up a tangible asset for custody. I’ve seen this kind of situation over and over again. One party asks the other (usually the mother) to give something up, like spousal support or a large share of a retirement account, in exchange for custody. Most mothers are willing to give up just about anything to keep custody of their children, only they don’t realize that custody isn’t permanently determined. Later, their child’s father can bring them back into court and petition for a change in custody. Mom can’t bring dad back to court and petition to get a share of the retirement account she gave up. It doesn’t work that way. Only the things relating to the kids are eligible to be re-determined later on.
It’s a good idea to talk to an attorney about your unique situation and come up with a plan of action for how to move your case forward. You have to make good decisions now in order to protect yourself in the future, and the beginning of your case is the perfect time to set the tone for the future. By being calm, rational, and reasonable, you demonstrate to your soon to be ex that you’re not here to fight. By making good decisions now, you protect yourself and your finances, both now and in the future. By setting up a carefully calculated plan, you give yourself peace of mind and a chance to rebuild your life into what you want it to be after your final divorce decree is entered.
For more information, or to speak with one of our licensed and experienced divorce and custody attorneys, give our office a call at (757) 425-5200.