Marriage doesn’t always last forever, and that’s okay. In fact, I generally think that, the shorter the marriage, the easier the divorce, mostly because there’s not often THAT much to divide. Life changing money usually isn’t made in just a few years, which means the stakes are generally correspondingly smaller.
Why is that good? It often means that the parties don’t have any real reason to drag out the divorce with nasty fighting, and are more likely to resolve relatively amicably without litigation.
I also want to say, at the outset, that there’s no shame in realizing your marriage doesn’t have staying potential and ending it on the early side. In fact, I think for most of the people involved – the two of you, your families, and any children you have or may have had together – to end it sooner and focus on either going your own way or, if you share children in common, coparenting in peace, is better.
There’s no shame here. There’s no ‘what ifs’. There’s only what’s now, and how to set you up for your own happily ever after. And isn’t it better to think about that after just 5 years married rather than 15 or 30? I definitely think so!
How to get a divorce after 5 years of marriage
The basic ‘how to’ of divorce is the same, whether you’ve been married for 5 years or 10 or 15 or 55. You can either negotiate a separation agreement between the two of you that formally divides all the assets, liabilities, and responsibilities, or you can go to court and litigate about how it’ll be divided. I heard someone say the other day that putting these decisions in a judge’s hands is an abdication of responsibility to a government figure, and I like that terminology. Both the whole ‘abdication’ piece, because, really, who BETTER to decide what should happen to your things than, you know, you, and also the ‘government figure’ part, because, yeah, the judge is essentially the government.
I don’t want the government’s hands in my own business any more than it has to be. I file my tax returns, I pay my personal property tax (grudgingly, I can tell you), and I do my best to avoid speeding, rolling stops, or failing to use a turn signal. I am sure you feel the same way.
Like I said, though, it’s good that you haven’t had that much time to amass marital assets, because there’s less to divide, and what you do have to divide is not life-changing money. We’re not talking about thirty years of retirement here, after all. So, its probably likely that you’ll be able to reach an agreement – though, please be sure that I am aware that this does not mean that you’ll necessarily be able to do so easily.
Still, going to court requires a sort of ‘is the juice worth the squeeze’ analysis.
Special considerations for divorce after 5 years of marriage
Custody and Visitation of Minor Children
Most marriages, after five years, involve children. Though its possible you could have older children, it’s probable that your children are small – infants, even – or school aged. You might have concerns related to a breastfeeding baby, or overnights with children who are too small to understand what is happening.
Sometimes, parents married about 5 years or so come to me thinking that they want to try a nesting arrangement – basically, where the parents move in and out of the marital residence, but the children stay put. While its an admirable goal, and would be great long term if circumstances stayed exactly the same, its often difficult to put in practice, especially when one (or both) of the parents starts dating again.
I would caution you that, at this stage in your marriage, one of the most important things will be setting up your successful coparenting relationship. You’ll have to coparent together, in all likelihood, for many, many years. Its worth thinking about what you’d like that to look like, and then working backwards as you consider what parenting plan might work.
Would shared custody help? Is primary physical custody critical? What are your work schedules? How do you want to handle remarriages and blended families? Is there some way to make sure that your prioritize the things about parenting that are important to each other? A lot of groundwork can be laid here, or, conversely, a lot of trust can be irrevocably eroded, so you want to think about the decisions you make and how it’ll affect your ability to effectively coparent later. Ideally, you’d rather be more coparents than parallel parents.
Keep in mind, too, that you’re not locked in. Custody and visitation are modifiable based on a material change in circumstances, so you can change things if you’re not feeling it or it isn’t in the children’s best interests.
After 5 years of marriage, spousal support probably won’t be awarded, if its awarded at all, for very long. At most, you’re probably looking at half the length of the marriage, but, depending on your circumstances, that may be generous.
You’ll want to consider your expenses, whether you should get a job (or work more at the one you have) if what you’re receiving in child support isn’t enough to offset your living expenses. (And, of course, its not like child support is guaranteed to be paid to you; it depends on the custodial arrangement and the incomes of both parties).
As is also true in the case of a marriage lasting 1 year or less, your share of the retirement won’t be huge. In a 30-40 year career, half of what was earned during 5 of those years (maybe even five of the earliest years of your spouse’s career, though it is also possible that you’re an older couple) probably won’t amount to a whole lot of money. It’s worth discussing with a financial advisor or attorney who can give you specific advice for your situation, but don’t count on it amounting to a lot. You’ll want to probably work and earn your own retirement yourself.
The marital residence
For women who have young children, one of the biggest concerns is often the marital residence and, specifically, whether or not she can afford to keep it. I definitely advise you to look carefully at your finances, and consider not just the mortgage cost (which you’d have to refinance both to take his name off and pay him his portion of the equity) but the cost of the escrow account, if you have one, and maintenance and repairs to the house. No, I don’t mean a bathroom remodel; I mean basic, necessary repairs – like a new roof if there’s a hurricane (or just wear and tear from 30+ years) or a new HVAC unit. Not only that, but consider the cost of the work around the house – lawn maintenance, for example – that you’d have to do by yourself, on one salary, where there used to be two adults and two salaries to maintain it. There’s a lot to consider, and you can’t make a super sentimental decision about it.
Keep in mind that this isn’t definitive gospel. This is general advice, meant to help you figure out which way is up in a turbulent and overwhelming time. You’ll want to talk one on one to a licensed and experienced Virginia divorce attorney about your specific situation to get advice tailored to you. This may hit the mark, or it may go wide of it – either way, you’ll want to make sure to double check and to come up with a plan of action that takes your needs into account.
For more information, to request a copy of our divorce book for Virginia women, or to schedule a consultation, give our office a call at 757-425-5200.