If you’ve never been divorced before (and even if you have), you’re probably wondering what to expect. You’re probably a little terrified about what you might find out, and you’re probably also wondering whether there is anything at all that you could possibly do to prepare yourself for what the next year or more of your life is going to bring.
There are tons of materials out there for almost every single other walk of life, but, somehow, what to expect when you’re divorcing is not really something that a lot of people are talking about. Or, if they are, they’re self-help gurus or therapists or someone who is telling you to manage your emotions, take care of yourself, and take things one day at a time. All of those things may be good pieces of advice, but if what you’re worried about what is about to happen to you legally? What if you want to be sure that you’re not making any decisions that are going to hurt you later on, in court or in your negotiations? What if you have a question about custody, retirement, or support? What if your husband wants you to sign something or go to mediation or do something that sounds fishy to you, and you’re afraid that, somehow, without meaning to, you might give up something that you would have been entitled to receive? Words of wisdom or encouraging sayings are not going to help you get anything real accomplished.
If you want to get from where you are now to a place where you’re happily and successfully divorced, you’re in the right place. You’re right to wonder what kinds of questions you should be asking. You’re right to be nervous about blindly doing what your husband wants you to do. You’re right to be concerned about your rights and entitlements under the law. You’re right to wonder about the divorce process in general, because what happens in Virginia is different from what happens in every single other state. Not only that, but it changes all the time, as laws are updated and new cases are decided in superior courts.
If you’re wondering what to expect when you’re divorcing, you’re not alone. And you’re smart. Here, I’ve compiled a list of __ things you should know when you’re divorcing. It’s not an exhaustive list by any means; there are plenty of things you should know. Still, it’s a great place to start. Hopefully it sheds some light on your current situation, and brings many, many more questions to mind. The more questions you ask and have answered, the better place you’ll be in when it comes time to move forward with your divorce.
1. You have a lot of decisions to make. Like, now.
Divorce isn’t just something that happens to you. Divorce is a choice, and it’s a choice you should make with your eyes wide open. Regardless of whether you were the one who initiated the divorce or not, you have a lot of choices to make about how this is all going to go down.
A lot of the choices you make in the beginning really affect how your divorce is going to play out, so it’s important that you know the ropes well enough to be sure that the decisions you’re making aren’t going to make your soon to be ex husband so angry that things blow out of proportion, or discourage reaching the kind of agreement that would ultimately mean that your divorce runs a little more smoothly.
You’re going to have to decide, basically, whether you want a divorce that happens in the courtroom or a divorce that happens on paper. I’ve oversimplified that a little bit, but it’s more or less true, all the same. You wind up with a divorce in the courtroom if you (1) absolutely, positively cannot agree on how things are going to be divided, or (2) allege fault based grounds. You end up drafting a separation agreement (and, therefore, getting divorced on paper) if you (1) cooperate, and (2) can ultimately reach an agreement.
There are some cases that can’t be resolved anywhere but court, but those cases are few and far between. Most cases will be settled, eventually, it’s just a question of how much we fight and go back and forth before we reach an agreement. In most cases, the best case scenario is the one where we’re able to get the most of the assets for our client (and, of course, the fewest of the marital liabilities) and, simultaneously, save as much money as possible. Obviously, the more money the parties have left over at the end of the process, the more money they have left for their brand new start.
You have to choose, at the beginning, which type of divorce you see yourself getting. If you choose the separation agreement, you’ll have a few more choices, like whether you’d like to hire an attorney to negotiate it for you, attend mediation, hire a collaboratively trained attorney, or do it yourself, but the biggest choice is really whether you plan to fight it out in court, or come to the table together and negotiate.
2. He’s not going to be all that nice, but you should be.
Now that you’ve started to think about the type of divorce you’d ultimately like to get, it’s time to make decisions about how to actually achieve that. Obviously, things between you and your soon to be ex hubby are probably not all that cordial. You’re probably dealing with a lot of competing emotions. So is he, but men really aren’t all that equipped to deal with competing emotions. (Maybe that’s sexist but, in my experience at least, it’s very true.) When men are upset or confused or scared and they aren’t really entirely sure how to deal with all those feelings, they tend to get mean or mad. They blow up. They yell. Or they run away and bury their heads in the sand. Either way, there’s not really a whole lot of “let’s just sit down and talk about this like mature, rational adults.”
If your soon to be ex isn’t really dealing with his feelings all that well, it’s probably becoming harder and harder for you to deal with him. It’s easy to want to throw your hands up and refuse to deal with him anymore or come back with something carefully calculated to teach him a lesson. This probably isn’t productive.
In my experience, when a couple is getting divorced, one person starts out being mean, the other person responds, and then we end up with a full fledged war on our hands. I understand; it’s complicated and emotional and there’s a lot going on. Still, if you’re thinking back to point #1 and you’re determined to make sure your divorce leaves as much money as possible for you to start over with at the end, you’re going to have to be nice even when he’s not. Okay, well, maybe not nice, but you’re going to have to not egg it on or fight fire with fire. You have control over the situation in more ways than you think right now, and you need to exercise that control to protect yourself as much as possible.
3. He may cut off your access to joint checking accounts.
Like I said, he probably isn’t going to be all that nice to you once you start heading down the path towards divorce. He’s not going to be nice in all sorts of different ways, and you really should be prepared for it ahead of time so that you can stay calm and collected and keep your eye on the prize.
You should be prepared ahead of time for what lies ahead. In my experience, when couples separate, one of the first things the higher earning spouse does is cut the other spouse off from the marital money. Usually, the higher earning spouse just ends up having his paychecks direct deposited into another account.
It’s mean, and it certainly makes life difficult, especially if you’re still living in the marital residence and trying to make things work. You probably can’t pay the mortgage and your bills and buy groceries all on just your salary without any help from your husband. You’re not alone; this happens all the time. It’s not a super difficult thing to fix, but it does open up hostilities on a more personal level and makes negotiating a little more difficult.
Usually, what we do in cases where our client doesn’t have enough money to survive on her own, is file for divorce. Once we file for divorce, we can schedule a pendente lite hearing. A pendente lite hearing (or PL hearing, for short) is a temporary support hearing, where the court can establish temporary child and spousal support, among other things.
Of course, filing for divorce means that you’ve alleged fault based grounds. (That’s really the only way to get into the court before your period of separation has run.) If you don’t have fault based grounds, or you really, really, really want to stay out of court (and I can’t say I blame you), we would have to jump right into negotiations so that we could establish support in the separation agreement.
Don’t let things like this affect the ultimate outcome of your divorce. If you’re working with a good divorce attorney, and you let them know what’s going on, they’ll be able to help you navigate these tricky situations without compromising the quality of your divorce. This is something that probably will happen, and probably will feel pretty shocking to you. But it’s not unusual, it’s not something we can’t handle, and it’s not worth escalating the level of difficulty in your divorce. Take a deep breath, and prepare.
4. Speaking of the marital money, it’s your money, too.
If your marital money has been deposited into a joint checking account, like most of us, it’s your money, too. Though you probably shouldn’t just wipe out the account entirely (no, really, you shouldn’t—because the court will probably make you repay half of it later), you do have a right to use that money, especially before you separate.
If you’re worried about how to make things work post separation, it’s a good idea to do some pre separation planning. Use marital money to fix or replace or take care of anything that will probably need fixing, replacing, or care in the near future. After you separate, your car repairs will be your own responsibility, so it’s best to take care of these things early on with marital money. Get braces on the kids, replace your tires, or buy new towels for your new apartment. Whatever you need (or think you’ll need) in the near future, now is the time to buy it.
Not only that, it’s not a bad idea to make a little fund of your own. Whenever you go to the grocery store or Target or whatever, get a little bit of cash back. Not enough that it’s glaringly obvious, but just enough so that you’ll have a little extra cash on hand in the event of a post separation emergency.
5. You’re going to have to gather a LOT of information.
Be prepared. Getting divorced is kind of like doing your income taxes, only it’s a lot harder. When you fill out your tax return, all you have to provide is information about how much money you make. When you get divorced, you have to provide information about how much money you make, what real property you own, what retirement accounts you have, how much debt there is, what kind of cars you drive, how you plan to co-parent together, and more. You’ll have to gather tons and tons of information so that your attorney can either draft an agreement on your behalf, or argue to the judge about what exists so that he can make a final decision.
No one can do it for you, and there’s really no way around it. You’re going to have to gather a lot of information in order for your divorce to move forward. It’s not a bad idea to start gathering statements now, so that you’re prepared when you walk in to your initial consultation with the attorney. To get you started, here are some things you might need to bring:
• Tax returns for the last three years
• Benefit statements from pension plans, profit sharing plans, 401(k)s, IRAs, etc.
• Life insurance policies
• Short and long term disability insurance policies
• Homeowner’s insurance policies
• Mortgage interest statements
• Car insurance policies
• Health insurance policies
• Bank account and credit card statements
• Wills and living wills
• Pre-nuptial agreements
• Previously signed separation agreements
• Leases and real estate contracts
Whatever you can find and put together before your initial appointment will be helpful. It’s definitely a lot of work, but it’s going to have to be done.
There are lots of things to expect when you’re divorcing, but these are the first five things you should know. For more information about divorce, it’s a great idea to check out our Second Saturday: What Every Virginia Woman Should Know About Divorce seminar. You’ll learn about the Virginia divorce process from a licensed and experienced Virginia divorce attorney, and you’ll even have the opportunity to ask questions to the attorney directly. You won’t regret it!