In many ways, contested or uncontested, your divorce is a negotiation. In most cases, regardless of whether you initially file on fault, your divorce will ultimately be settled. That’s not a dig; in fact, it’s an ideal situation. Rather than leaving it up to a judge, you and your husband can reach an agreement about how your assets and liabilities will be divided.
Taking your divorce out of the hands of a judge serves a couple different (but important) purposes. For one thing, it allows you to take the portion of the assets and liabilities that matter most to you. A judge may very well order an even split, right down the middle—but that doesn’t take into the account that the boat means nothing to you (and everything to him) or that what you’d really like is to figure out a way to keep the house.
For another, it allows you to maximize the value of your assets. I’ve been in court before where a couple was fighting over a car. The judge told them that if they couldn’t agree, he’d order the car sold at auction and the proceeds split. He even acknowledged that they wouldn’t get the maximum amount for the car if he did it that way, but he said (truthfully) that at least he knew this way it would be fair. Why fight if it doesn’t yield more for you? (Besides, you’ll also have to pay attorney’s fees!)
In many ways, reaching an agreement allows you to get the best deal possible in your divorce because it maximizes the value of your assets, allows you to have more control over the portion that you receive (though it may still look close to 50/50, that doesn’t mean each 50% is worth the same to you!), and reduces the amount you pay in attorney’s fees (which is more that can be divided up between the two of you). Besides, most people want to avoid a contested divorce anyway. They know, cerebrally, that fighting over things won’t be good for their bottom line, and, besides that, it’s pretty scary to put your life in some stranger’s hands. Judges aren’t well known for being sympathetic to divorcing couples. They often show frustration in the courtroom when couples get angry with each other or end up in tears. (Most prefer criminal or personal injury cases, to be honest.)
But how do you know you’re getting a good deal when you negotiate?
It’s hard to know whether you’re agreeing to something that’s awesome, so so, or whether you’d actually get a better deal in court. Of course, even if you might get a better deal in court, you’ll have to weigh whether it would be so much better that it would outweigh the additional amount you’d have to pay towards attorney’s fees.
To some degree, you have to guess. You have to consult with an attorney who has an understanding of cases like yours, and can give you some idea of what might happen if your case were to go to court. Some things, like retirement, aren’t worth fighting over—because you’ll receive your marital share (and vice versa). Other things, like spousal support, are more loosey goosey, and we see a wider range of outcomes.
Attorneys experienced in divorce and custody cases handle a ton of cases, so you probably need to sit down and have a conversation about your goals. Determine what’s realistic, what you’d like to shoot for, and what you’d settle for BEFORE you begin negotiating. You should have an idea about how all of these interrelated points will coexist post-divorce so that you can create a separation agreement that will work for you. Your attorney can give you an idea of what a good deal for you might look like, and also how to go about achieving that goal. Will I have to give up on things I want to get a separation agreement in place? Maybe. Sometimes attorneys say that the surest way to know you’ve gotten a good result is because both parties feel like they’ve given something big up.
In divorce, you often win some and lose some. It’s not like a personal injury case, after all. There’s no insurance company with deep pockets you’re going after; it’s just you and your husband and, unless you win the lottery right before you separate, you’ve only got what you had during the marriage to divide. There’ll never be more than that! Sometimes, too, you have to give things up to avoid going to court. Maybe you don’t think that, ultimately, the juice is worth the squeeze (like, what you want doesn’t cost what going to court will cost), or you just don’t have the up front money to fund the divorce (you’re looking at a pretty high retainer fee most of the time; $50,000 and up in most cases), or there’s a possibility that you won’t get what you’re looking for anyway and you’ll be out the attorney’s fees AND without the asset you wanted to receive. It’s definitely a complicated weighing of pros and cons.
How do negotiations work in divorce?
Most of the time, we draft a separation agreement first, and then go back and forth until we reach an agreement that both parties are comfortable with and will sign. Usually, the first draft identifies the issues—we agree to some, and we list the things we don’t like or want to adjust a little. Then, we work from that list of things until we reach an agreement. There’s definitely some back and forth, and it’s not always easy. In fact, in many cases, it often seems like we’re on the brink of giving up and filing for divorce before we ultimately reach an agreement. It’s not always that way, but it’s not unusual, so if you’re finding that it’s harder to reach an agreement that you thought, don’t give up—and know you’re not alone! Divorce isn’t a perfect process. It’s messy, and sometimes complicated. You’ll likely feel like you’ve given up on some things, but an experienced attorney can give you advice about what you can really expect to receive in your Virginia divorce, which will help you make important decisions.
Sometimes, it’s necessary to file for divorce and pursue a contested divorce (like when the other side just isn’t willing to negotiate or give you what the court would)—but other times, an agreement is more expedient, more cost effective, and more likely to yield the long term results you need to get your fresh new start. For more information, or to schedule an appointment with one of our licensed Virginia divorce attorneys about a divorce settlement that might be reasonable in your case, give our office a call at (757) 425-5200.