In many cases, it’s not necessary to use fault based grounds for divorce. After all, if you file on fault, you’ll have to litigate to prove to the judge that your grounds exist. Because, depending on the grounds, different civil and criminal penalties apply, you’ll have to meet a specific burden of proof, and that will likely involve a fair amount of attorney time as well as pretty strong evidence and witnesses to testify (and survive cross examination).
It’s expensive. It’s time consuming.
And, even more to the point, it doesn’t give you the level of control over the situation that you often have if you’re able to negotiate a separation agreement with your soon-to-be ex spouse. (Right? Because you could deal with expensive and time consuming if it meant you were certain to get the results you felt you deserved.)
But, if all those things are true, why would anyone choose to go to court?
Like, ever? Right? I mean, it just sounds crazy.
Though I think very few women would say that filing for divorce is their first choice, it can be a necessary – and important – part of a comprehensive divorce strategy.
After all, so much depends on the specifics of the circumstances, including his level of reasonableness, the issues involved, the attorney he hires, and more.
And, aside from everything else, it’s not always possible to reach an agreement, especially on hot button issues, like child custody and spousal support. In some cases, there just isn’t much common ground to be had at all. That’s always one reason why these things end up in court.
There can be other reasons, though, that drive us to file for divorce even when things maybe should or could be more amicable.
But, why? Good question! Let’s discuss.
1. The other party refuses to sign an agreement at all.
We see this happen sometimes, especially when one party or the other has a religious or other moral objection to actually getting a divorce. I actually have a case like that now, where the husband just can’t get behind signing anything that would allow his wife to get a divorce. (It doesn’t, however, seem to convince him that he should change, participate in counseling, or otherwise make choices that might convince her to stay, but that’s neither here nor there.)
Ultimately, one of the biggest problems with negotiating a divorce is that you can’t FORCE the other party to negotiate with you in good faith. Or negotiate at all, even in bad faith. If you can’t get the separation agreement signed, there’s nothing you can do to force them to sign.
No signed agreement? You’ll have to go to court. Those are the only two options.
We have to resolve all the outstanding issues in a marriage in order for a judge to be able to sign off on a final decree of divorce, which requires that we have either a separation agreement or a final order entered by the judge. There’s no way around it. Either you agree, or you go to court. You can’t agree? You have to go to court.
2. You may not know the full extent of the assets (or liabilities!) in the marriage.
If you don’t know what’s there to divide, it can be difficult (or impossible) to draft an agreement or to participate in the negotiation of one. If you just don’t know, there’s no way around it – you have to get the answers, and the only way to do that (especially if he won’t share financial documents or attempts to obfuscate) is to file for divorce and conduct discovery.
Discovery is the process we use to get answers to these questions – often financial questions, but not necessarily – and we need the authority of the court to do it. There’s no discovery in a case where the parties are negotiating; we have to file (and have the case properly in front of the judge) in order to do it.
3. He’s withdrawn support, or refuses to pay anything.
Filing for divorce can be the best choice in a case where your financial support has been completely withdrawn. Sometimes, even if he’s willing to negotiate an agreement, there’s no time to wait in getting child and spousal support awarded, or even an order granting you exclusive possession of the house. If he’s the breadwinner and you depend on him to keep the wolves from the door while the case is pending, you may find that you have to file for divorce to have a pendente lite hearing.
Getting support established early on is often a really big deal. And you may find that, if you don’t, your ability to defend yourself in the suit is dramatically diminished – NOT a position you want to find yourself in!
In certain circumstances, attorney’s fees can also be advanced at this point. (That’s not to say that you’ll be given the money to hire your attorney, but that you could have money advanced that then is taken out of your equitable distribution award later on.
It’s also important to keep in mind that, just because you file for divorce on fault and you start your divorce in the court system, that doesn’t mean that you’re stuck in court forever. Many people file to solve these problems – a lack of support, or a lack of knowledge about the assets and liabilities in the marriage – only to switch over to negotiate once the answers are discovered.
Likewise, you may find that he’s not willing to participate in the process – until you twist his arm a little bit. When he sees that you’re serious (and also that he can’t really stop the divorce from happening, only slow it down and cost you both some serious, serious money), he may be more willing to negotiate, if only because there are very few other options.
After all, litigation takes time and costs money. And, whether he likes the idea of a divorce or not, he may find that you filing for divorce and forcing his hand causes him to think about things a little bit more practically. (If he can’t stop it, why continue to fight it? It’ll just cost money!)
Sometimes, aggressive tactics are needed, especially if you’re dealing with a narcissistic or otherwise abusive husband. It’s important to discuss your options with a Virginia divorce and custody attorney to come up with a plan that suits your needs.
Give our office a call today at 757-785-9761 if you’d like to schedule an appointment to begin a discussion of what might be your best course of action.