If I had a nickel for every time a friend or family member texted me with a random legal question, I could probably retire. But, of course, they aren’t interested in paying, they just want to get information.
Sometimes, I wonder why – because I feel like I give the same answer to literally every single question I’m ever asked.
I’ll cut straight to the chase. In divorce and custody cases, there’s only ever one answer, it seems like, and it is this:
“Yes, if you agree; if you don’t agree, it’s up to the judge.”
You see, in divorce and custody, pretty much everything is on the table – as long as you and your husband/child’s father are willing to sign an agreement allowing it to happen. You can agree to give one parent primary physical custody, to share custody on a week on/week off (or 4-3-3-4) arrangement, or even to commit to remain together in the same home, and have the parents move in and out during the parenting time. You can give custody of one child to one parent, and the other child to another parent.
You can give one party all of the equity in the home, or an entire retirement account. You can agree to pay spousal support at a super high amount for an indefinite period of time. You can agree to modification or non modification. You can waive child support or spousal support.
In short, almost anything you can imagine – or anything you can dream up – can be memorialized in a written agreement and, if signed, can become the terms of your divorce.
Now, of course, that’s risky too – because if you sign a bad agreement, or you sell yourself short in some way, there’s really almost no way to rectify that. The court is almost certainly going to hold you to your agreement, even if, objectively or subjectively, it’s a bad one. You could potentially argue duress, but it would be very costly and unlikely to succeed. So, all that to say – yes, you can agree to it, if you like, and you’re both willing to sign a written agreement, but you should also tread carefully. Make sure that you’ve read the agreement, that you understand it, and that you are willing to abide by its contents, because you’ll be held to it later on down the line, whether you like it or not.
But if you can’t reach an agreement, whether or not you’ll be able to do what you like will be down to the judge. Although local attorneys may be able to weigh in on whether or not a particular scenario is likely depending on the judge to whom your case has been assigned, it’s not always foolproof. Judges, like the rest of us, have different viewpoints. And, sometimes, their viewpoints can manifest differently from one scenario to the next.
It can be difficult to predict a judge’s opinion on a particular subject. It’s almost always fairly risky to go to court, because there’s the possibility that you could spend additional money on the litigation to find that the judge doesn’t take your side at all.
In general, what I think almost always happens, is that judges are not particularly creative with how things are divided. If what you’re suggesting is a creative solution, forget about it. Judges tend to divide things similarly across their cases because they’re more generally accepted.
For example, I think you’re more likely to get a week on/week off custody schedule than you are to get one that has a lot of nuance or follows a less predictable timeline. Why? Because it could get the judge overturned on appeal, because it might be interpreted to show favoritism or be inequitable. Predictable patterns show impartiality better, and, besides, it takes less evidence and witnesses to get to that point! If a different arrangement happened in every single case, well, cases would take much, much longer than they currently do!
I’m not saying it’s good or bad or otherwise, it’s just reality. There are issues you can win or lose – like custody, or spousal support – where it’s down to the judge’s temperament or beliefs or mood on that particular day. Some of these things can be hard to predict, depending on your situation, your local area, and the judge to whom your case has been assigned. There are other issues, like division of the marital residence or retirement accounts, where judges tend to follow fairly predictable patterns, especially as it relates to the most commonly litigated issues. Sure, you could easily present a novel or unusual issue, but we do see some trends, too.
So, whatever your our issue is, it’s a good idea to consider whether you could get what you want established by agreement, or whether you’d be better off litigating.
Those are the only two alternatives, after all.
For more information, or to discuss your case in person in a confidential consultation, give our office a call at 757-425-5200.