Is it worth fighting for ___ in your divorce?

Posted on Oct 24, 2014 by Katie Carter

In divorce, some things are negotiable, and other things just aren’t.  It’s a good idea to speak with an attorney before you enter into negotiations with your husband, just so that you’re aware of where the negotiating points are.  In my experience, people who don’t tend to give away things that they should never give up—or that they wouldn’t have had to give up anyway.  Where’s the compromise in that?  Compromise over the things that matter, but know what’s what in your divorce so that you’re prepared, when the time comes, to stand your ground.

So, basically, a divorce can work in one of three ways.  Either you negotiate a settlement and sign a separation agreement, you go to court the judge enters an order, or you agree on what you can agree on and the judge decides the rest.  Usually, what a judge would order in your case is what attorneys use as a benchmark for determining whether or not something is worth fighting over.  Attorneys who are experienced in practicing in their area typically know what judges will and won’t order, and can tell you ahead of time.  Why does this matter, if you’re going to negotiate an agreement anyway?  Well, for one thing, you don’t want to use something as a negotiating point that you would absolutely get anyway.  For another, your attorney (and your husband’s attorney) are familiar with the courts and the judges, so they know full well what the judge would order—and usually won’t want to waste too much time arguing over something that they know would be a done deal, too.

You have a lot of flexibility when you negotiate an agreement, because you can come up with all sorts of creative solutions that are designed to specifically address your unique needs (and the needs of the rest of your family).  But that doesn’t mean that attorneys throw the rules out the window, either.  There are some things that we rarely allow to go up for negotiation, because we know it’s not worth it.  Sure, we’re not in court, but what happens in court provides a foundation for settlement.

At the end of the day, some things just aren’t all that negotiable.  There are certain things that a judge will automatically award you, so there’s no need to fight over those things, even if you’re negotiating your agreement with an attorney.  Either you’ll get them regardless, or there’s no way you’ll get them—some things just aren’t worth fighting over, so it’s best to save your time (and money) for fighting battles that are winnable.

In large part, this is what you pay your attorney for.  In a word, it’s expertise.  Your time and money are better spent worrying about the things that matter—your attorney will talk to you about what your goals are for the process, and will help you identify what really matters.

1.    College expenses for kids

Unfortunately, in Virginia, there is no provision that allows child support to extend past the age of 18, or anything else that would in any way require dad to provide post graduation support to children in college.

Sometimes, we put provisions like this in our agreements anyway, in the hopes that dad will consider providing for the children after high school graduation his obligation and sign, but the reality is that, if his attorney wants the provision removed from the separation agreement, no amount of fighting on our part will keep it in.  What would be the point?  The judge wouldn’t award it, because there’s no legal basis for awarding it—not because the judge is a jerk and doesn’t want to, but because the law won’t allow him to do it.  Our code just doesn’t provide law to support this.  Since the judge won’t do it (again, not because he doesn’t want to, but because he can’t), there’s no sense spending time and money fighting over it.  Taking it to court wastes money since we already know what the judge will say.

Of course, that doesn’t mean that your child’s father won’t provide financial support once your kid enrolls in college.  Lots of dads do, not because the law or their separation agreement requires them to, but because they believe they should.  They believe in the value of education.  They want their kids to be happy and successful.  Whatever their reasoning, lots of dads provide financial support for their kids after graduation.  There’s just nothing (legally) that we can do to force him to memorialize this obligation in writing.

In a lot of cases, our first draft agreement will include this provision, in the hopes that he will sign it as is.  If he won’t, there’s really no point in forcing the issue.

Even if he won’t sign an agreement that includes a provision regarding college expenses, don’t despair.  Lots of dads are unwilling to sign agreements that require them to do more than the law provides (or, in all honesty, their attorney discourages them from signing something that requires them to do more than the law allows), but that doesn’t mean that, when push comes to shove, they won’t lift a finger (or write a check or swipe a card) to help.

2.    Health insurance

This is a crappy one, too, and it’s not because your husband is a deadbeat.  (Maybe he is, I don’t know; I don’t think we’ve met.  But this one isn’t his fault.)  Because of the way health insurance companies operate, your husband cannot maintain you on his health insurance policy after your divorce is finalized.  Health insurance companies offer insurance to spouses because of the familial relationship.  After divorce, you and your ex husband become legal strangers—and there’s no longer a family relationship.  To qualify for coverage under someone else’s policy, you have to be related to them.  It’s just the way it works.

Your children can stay on his policy (of course, assuming that they are his biological or adopted children)—it’s just you who would have to find an alternative solution.

As far as health insurance is concerned, the judge can’t make your husband keep you on his policy, and your husband can’t agree to keep you on his policy (even if he wants to).  There’s no question it’s pretty crappy, but those are the rules.  He didn’t make them, the judge didn’t make them, and I definitely didn’t make them.  We absolutely, positively cannot make him maintain you on his own insurance policy after divorce, so there’s no point negotiating or litigating this point.

That doesn’t mean that you’re entirely without options, though.

You could have a provision in your agreement that requires him to pay for your separate health insurance.  Sometimes, we can either include that as part of a spousal support obligation, or increase the amount of money that he owes as spousal support to offset the additional cost of separate health insurance for you.  (As you’re probably already aware, having your own health insurance policy, whether its an individual policy or one you’ve obtained through COBRA, is not cheap.) This is something that would have to be negotiated by your attorney, and the facts in your marriage would have to support an award of spousal support.  For more information, or to find out whether you qualify, feel free to contact us at (757) 785-9761.

3.    Retirement

Believe it or not, retirement is also another area where there is very little gray.  In a divorce, you get half of what was earned from employment during the marriage.  It’s based on a formula.  So, if you were married to your husband for twenty years, and he was employed by the same place for all twenty of those years and was contributing to his retirement account there, you’d have 50% of the money contributed in that time.  Anything he earned prior to your marriage or after the divorce would be his separately, but you get half of whatever was earned during the marriage.

This can be a really sore point for a lot of men (particularly men in the military) who think that their wives shouldn’t have such a claim over their retirement.  In fact, some of them even like to tell their wives that they don’t have a claim over it, probably (I’m speculating here) in the hopes that their wives will never look into the law and find out the truth.

A lot of military folks are also confused about the so called “ten year rule.”  According to the rule, people who have been married to military service members for less than ten years can’t get any of their retirement.  This is totally false!  The length of marriage matters, but not in the way you might think.  From the day you get married, whether your husband is military or civilian, you begin to accrue an interest in his retirement account.  (If you’re married just one year, and your husband has a thirty year career, your one half interest in the one year won’t really amount to much, though.)  In the military, though, if you have been married to your husband for less than ten years, you don’t qualify to get your share of his retirement paid directly to you from DFAS.  If you’ve been married fewer than ten years, your husband will have to pay you your share directly.  This is a little bit of a pain (as I’m sure you can imagine), because you have to wait for his check (which may be a way he chooses to play games), rather than knowing for sure when your check from DFAS will come.  Still, your interest in the retirement account remains unchanged.
It’s really important to know what things are worth fighting over, and what things just aren’t, because it can save you time, money, and frustration later on.  You’re much better off if you spend your time figuring out how you want to negotiate with respect to things that are actually negotiable.  Don’t let your husband talk you into taking less than you deserve—especially when it’s something the court would give you, anyway!

For more information about what your entitlements may be, give our office a call at (757) 785-9761.  Don’t just take your husband’s word for it!