One of my favorite questions to ask professionals – doctors, financial advisors, whoever – is what they’d do in my situation if they were me.
So it sort of surprises me, frankly, that I haven’t written an article where I tell you what I’d do if I was in your shoes. Of course, it’s a complicated question, because I don’t know you and I don’t know exactly what shoes you’re finding yourself in. But, in my ten plus years practicing family law representing women, I have done a great deal of thinking about what I’d do in my own case if it were me who was facing the divorce.
If, in your case, there’s a prenuptial agreement, then what happens will ultimately be guided by what your prenup says. I don’t have a prenuptial agreement, but I’ll say that I, personally, take a fairly dim view of them, especially for two young people who are trying to build a life together. I’m relatively certain that, if a man proposed a prenuptial agreement to me, I would not have married him.
That is a thing about family law that you have to keep in mind. Ultimately, you made a choice. So, family law is different from personal injury. You don’t choose to get in a car accident, but you do choose to marry and have children with your spouse. In many ways, you’re responsible for that choice. From having to pay your own attorney’s fees to having to deal with his abusive behavior, you are on the hook until your divorce decree is entered. And you’ll likely find that, though many people have sympathy for the situation in which you now find yourself, there’s very little that we can do to dissolve the marriage and absolve you for your role in it. You married him – so you’ll have to divorce him, too.
If it were my divorce, I’d either want to reach an agreement or participate in the collaborative divorce process.
I have two small children, and I know I’d worry endlessly (I’m a chronic worrier anyway, so this isn’t a stretch for me to imagine) about how the divorce would impact them. I am fairly certain that I’d care for very little beyond that, which is fairly typical of moms, especially of moms with very young children. I would not want to participate in a litigated divorce, and I imagine that – even knowing my rights and entitlements like the back of my hand – I would not put up a fight to receive them if it meant hurting my kids. You only get one shot at raising your little humans, right?
Litigation is time consuming and expensive. I couldn’t really do it and represent myself, so I’d still be in it for the cost of it, just like you would be. (Lawyers have an old adage; an attorney who represents himself has a fool for a client.) I would not want to inflict the damage of litigation on my own family – because, after all, even after a divorce you have to try to set up a successful coparenting relationship with your ex. There’ll be birthday parties, graduations, weddings, grandchildren – and you want to be able to be present in the same room without making your children or grandchildren uncomfortable. Or, at least, I would!
I think I’d probably ultimately go with a separation agreement, though I really love the idea of a collaborative divorce, too. Since both my husband (thanks to me) and I would already know more or less what to expect and have some big shared goals in common, I think we’d be able to work it out with just an agreement. If I was wrong, though, and things blew up or got more complicated than I would expect, I’d turn to a collaborative divorce.
Ultimately, in either case, a separation agreement or a collaborative divorce allows you a lot more creative license when it comes to your divorce. Though I think that, in general, separation agreements are more guided by what a court would do (because, ultimately, if you can’t reach an agreement there’s little left but litigation) than collaborative divorces (because participating in the collaborative process means that you reach an agreement not to go to court and, if collaborative fails, you have to hire new attorneys), either one will give you more freedom to craft your own solutions than litigation.
Collaborative sort of requires creative solutions; separation agreements allow it if both parties agree (but still retain the ability to go to court if an agreement can’t be reached).
For many families, the real sticking point is custody and visitation and spousal support – and I expect that would be true in my own case, too. Many millennials and later take a more collaborative approach to parenting, and dads really want to be involved as much as moms. Though it looks a little different when the parties are happily married, when it comes to a divorce or separation I often hear that dads want 50% of the time. That’s not a legal requirement; in Virginia, the law only requires that the judge equally consider the different forms of custody. Say what you want about whether 50/50 should be mandated or not (I, personally, am of the view that it should not be), but today, as it exists in Virginia, it is not a legal requirement.
Like many moms, I’d push for as much time with my kids as I could get, and it would be very, very difficult for me to give up anything. I hope I would, though, and I hope I’d be able to establish the kind of post divorce life that allows new stepparents to be ‘bonus mom’ and ‘bonus dad’ to my kids, instead of setting up a hostile situation that harms the children and the coparents involved.
After seeing litigation, I’d never want that for my family or my kids. Especially my kids!
Knowing what I know about divorce, I definitely recommend that you get as much information as possible so that you can make informed, rational decisions. I think you should request a copy of our book, and consider attending one of our Second Saturday webinars. By having more information about what to expect, you’ll be able to make better decisions. Hopefully, too, you’ll be able to keep your emotions in check. It can be incredibly difficult, especially when you’re feeling scared and overwhelmed, but you’ll want to make sure that you’re not reacting out of fear and ultimately making the situation worse for you and your children later on down the line.
You should seek to deescalate tensions, rather than escalating them, so that the divorce outcome will be as good as possible for you, your children, and ultimately (though we care less about him, but his feelings are still valid because of the impact they can have on you and your kids and your results) your husband.
For more information or to schedule an appointment with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at 757-425-5200.