Just because you want a divorce doesn’t necessarily mean that you really know what you are entitled to receive – or, even more than that, what it might look like after the ink is dry on your final divorce decree. Hey, that’s okay!
You’ve probably never been in this position before and, heck, even if you have – things have likely changed since then. Not only that, but no two divorces are ever exactly the same, so different finances and different family situations can make two (or even three or more) divorces feel like night and day compared to each other.
That’s what we’re here for – and it’s okay! You’re not supposed to know it all. If you know just a few things – like that, come hell or high water, you are going to stay in the house – we can begin to formulate a plan that takes your preferences into account.
Important takeaway: set goals for what you want your divorce to look like. What is most important to you?
I often tell my clients that goal setting at the beginning of the process is especially important because it’s better than just shooting in the dark. Under Virginia’s equitable distribution laws, you’ll get half of what was earned, purchased, or acquired during the marriage (we call this marital property, as opposed to either separate property or hybrid property). But a straight 50% across the board might not be the best, most advantageous way to begin to divide the marital assets, right? Maybe it’s not a question of just receiving 50%, but receiving the 50% (again, of the marital assets – not necessarily 50% of all the assets that either of you owns overall) that means the most to you.
And what means the most to you is not the same as what means the most to the next woman, and, even if you’ve been divorced before, might not be the same as what meant the most to you in your previous divorce.
Now, I would caution you on one thing: you cannot let custody be the be-all, end-all. I know – that doesn’ t make sense, because custody is, literally, the be-all, end-all for almost any mom going through a divorce. But here’s the catch: custody, visitation, and child support are modifiable based on a material change in circumstances. Equitable distribution? Yeah, it’s not.
What you get in terms of a property settlement or a support arrangement is going to be determined by the specific terms set out in either your separation agreement or your court order. Custody, visitation, and child support will be modifiable no matter what. (Yes, even if you put in your agreement that custody, visitation, and child support are non-modifiable.) There is no way to make child custody, visitation, or child support NOT modifiable. It’s all down to ‘best interests of the child,’ and it is in the best interests of the child that we assess (and re-assess, as necessary) the orders pertaining to the children to make sure that what exists is in their best interests. It may seem obvious to say, but important to also point out that the court recognizes that a child’s best interests is not necessarily fixed at a particular point in time; it’s often a moving target. As the child grows and develops and matures, different arrangements might be in the child’s best interests. Right? And so, anyway, child custody, visitation, and child support are modifiable.
So, if you give up assets – say, a share of retirement or spousal support – to keep custody, you waive those assets forever. But custody? It’s still modifiable.
I get it: custody is #1. But you may find, to your detriment, that if you waive access to assets and support in the divorce in order to keep custody that custody may not be as well established as you might want it to be. In fact, quite the opposite, especially if the fact that you’ve waived your interest in these assets makes you more vulnerable or unstable financially.
The bottom line? Financial goals are separate from custody-related goals. (Though you’re smart to have goals for both scenarios!)
So, when you’re considering your goals overall, keep financial goals separate from custody-related goals. We’re not going to want to trade one off for the sake of the other.
So, what’s there to divide in YOUR divorce?
Obviously, we only have the assets that you already have – so, if you don’t own real estate, we won’t be dividing real estate. If there’s no retirement, well, then, there’s no real retirement to get, except maybe social security, and that’s not something that we really handle in the divorce. (That’s federal, so you either have an entitlement or you don’t; in any case, you should check with social security directly.)
We divide everything, from personal property to cars (boats and planes, too, if you have those), from bank accounts to timeshares. Everything you have will need to be divided but, again, that doesn’t mean you need to take 50% of each thing if you don’t want to.
Remember, too, that we’re mostly dividing the equity. A car that is paid off is more valuable than a fancy new car that you owe more on than it’s worth. Generally speaking, if you take the car – for example – you take the loan that goes with it. If you’re underwater in an asset (though, luckily, we see that less often), it may be a fight to either try to someone take it, or you’ll have to sell it and bring cash to seal the deal.
The big wild cards in divorce are child custody (and we’ve already talked about that a bit) and spousal support. If you’re planning on asking for spousal support, you’ll definitely want to work with an attorney to talk about how that might be structured. Most often, we see spousal support paid monthly for a certain period of time, but it’s possible to do spousal support all in one lump sum (a bit of a gamble, but it happens) or even so that it staggers either upward or downward as time goes on.
There’s a lot of variability in how anything is awarded and what, exactly, that should look like in your situation is something that you should talk to your attorney about. Can’t afford to buy the house – and pay back your spouse’s portion of the equity? Maybe you take a lesser share of the retirement or waive an interest in valuable personal property. These are things that, generally, a judge wouldn’t do because there isn’t time to come up with creative solutions to problems, but it’s something that you and your soon-to-be ex husband can agree on together, if it suits you.
We often say that the only limitations in a separation agreement are the creativity of the drafters, so really – if the assets exist – essentially anything is possible. Even more unconventional things do sometimes win the day! For example, lately – with high interest rates and high housing prices – I’ve done a couple of agreements where one party stays in the marital home for a period of time (five or six years, in the agreements I’ve done) and then has the option to refinance at the end of that period.
There are about a million different options, but one of the first ways to begin to get to the bottom of what might work best for you in your divorce is to start to talk to an attorney. Ideally, at the initial consultation phase, coming in with an idea of your goals and objectives will help us shape the conversation around what means the most to you.
For more information, request a copy of our divorce book for Virginia women or register to attend an upcoming divorce seminar.