Divorce during the holidays: part one

It’s not easy to think about divorce at any time during the year, but it’s especially difficult during the holiday season. The urge to be one big happy family, at least for the kid’s sake, is stronger than ever. It feels selfish to admit out loud, or even just to yourself, that things just aren’t right between you and your husband. At no other time in the year do we hear as many women telling us that they want to just try to ride it out for a little while longer.
It’s understandable. The holidays mean a lot to most of us, whatever our religious denomination. It’s a time of family togetherness, and that’s something that seems particularly precious and fleeting when you start to think about what separation and a possible divorce will introduce into your life—and, of course, your children’s lives.
A big part of what most people find disconcerting about divorce is that they just don’t know what to expect. You can prepare yourself if you an idea about what’s to come, but when you’re in truly unfamiliar territory, what you don’t know can easily cause you to lie awake at night, worrying.
Maybe the holiday season isn’t the time for you to think about divorce. Maybe, just for the sake of normalcy, you need to ride it out, at least until January. In January, of course, things tend to feel a bit different. Rather than focusing on family, we all become full of well meaning intentions and resolutions designed to make the next year better, more productive, and more fulfilling than the last.
Maybe it is exactly the time, though. Maybe you feel like you can’t imagine waiting until January, or like there’s really no time like the present to start building the better future you always imagined for yourself. Because isn’t that what this is all about? It’s about having a chance to start fresh and do the things you want to do. It’s about feeling happy, satisfied, fulfilled, and content. It’s about safety, and security, too—which, in case you didn’t know, are very often feelings you provide for yourself, not ones you have to rely on a man to provide for you. It’s about independence, freedom, and making your own choices. For some women, there really is no time like the present to start moving towards your goal. Why wait?
Whatever you’re thinking in terms of timing, it’s fine. There is really no right or wrong answer, especially when it comes to your life. That feeling in your gut will guide you towards the outcome you need.
My goal here is to let you know, whatever course of action you decide on, what to expect. I know it’s a scary and confusing process, but hopefully with a little more information, you can begin to start to make the decisions you need to make about how to move forward.
In this two-part post, I’m going to answer some of the most common frequently asked questions I get (like, can I make him leave and can I get him to pay for my attorney) and advice for you should begin to move forward. Let’s get started.

I want him to get out. Or I’ll go. I don’t care, just so long as I don’t have to live with him anymore.

I hear this all the time! Most people tell me that they’d like to start living separately, they’re just not sure how to go about it.
A couple of things you should know.

1. You technically don’t have to live in a separate house (or apartment or whatever) to be considered legally separated in Virginia.

If you really do want to move out, hang on—I’m coming to that. But, just in case living together is really the only financially feasible option (and it is in some cases), you can live separate and apart in the same house.
In Virginia, it’s really all about cohabitation—which means living together as husband and wife. You’re separated if (1) at least one of you forms the intent to end the marriage, and (2) you stop cohabitating. Cohabitating is something you can do both inside your home and out in public. Inside your home, you should stop cooking, cleaning, and doing laundry for each other. You should live in separate rooms, sleep in separate beds, and stop wearing your wedding rings. Outside the home, as tempting as it is, you have to stop playing the happy couple. No more attending church or going to parties together. To the extent that you have to cooperate for the sake of your children (like attending parent teacher conferences), it’s okay—but that’s really about it.

2. If you leave the home, you could be charged with desertion.

Unfortunately, moving on and moving out isn’t as easy and packing up your bags and riding off into the sunset. If both of you want the divorce and agree to separate, you’re fine—but it’s probably wise to get an agreement signed that says that you leaving doesn’t constitute desertion. If he’s the one leaving, no worries. You won’t get charged with desertion if he’s the one leaving.
Is this a huge risk? Probably not. Still, as an attorney, I have to advise you to be careful, and I want to make sure you’re doing all the things you need to do to protect yourself later on. Desertion is weak, as far as grounds for divorce go, and, though it’s possible, I’ve never seen a party’s desertion truly change the way property would have been divided. Still, it’s best to be careful, and get an agreement signed before you leave the home.

3. You can’t change the locks unless you have an order granting you exclusive possession.

If the home is a marital asset (purchased during the marriage using marital funds), you can’t just go around changing the locks to keep him out. After all, it’s his, too! Usually, the best way to do this is to file for divorce and then schedule a pendente lite (that’s Latin for “while the litigation is pending”) hearing. (Talk to an attorney about how to do this.) Then, you can ask for exclusive possession. If he’s already out anyway, you’re pretty likely to get it. After that, it would be appropriate to change the locks.

4. If you leave, you’re not giving up any property rights to the home or the belongings still in it.

You can leave, but that doesn’t mean you’re giving up your right to anything. The house and all the stuff in it are still marital property (as long as they were classified as marital property before you left) and subject to division in your final divorce. Don’t worry about walking away from valuable things; we’ll get those all handled later. If you can’t bear another minute in the home, just go and we’ll sort it out later.

Can I get him to pay for my attorney’s fees?

This is a very common question, and one for which I really, really wish I had a better answer. Generally speaking, regardless of who originally decided it was time to divorce, judges believe that each party really does have a responsibility to pay their own attorney’s fees. After all, it’s a free market economy—so businesses can price their goods and services at a level that the market will bear, and the consumer can make a decision about whether to purchase those goods and services. It’s simple supply and demand stuff here.
I think a judge would say, essentially, that if you don’t have the money for a Lamborghini, you probably shouldn’t be buying one—especially not if your plan is to have your husband have to go back later and pay for it for you. Your husband didn’t make that decision. If your budget is more on the level of a pre-owned Kia, then a pre-owned Kia for you it is. I didn’t say it’s fair. I didn’t say I agree. I’m just telling you what I see in my practice every day.
Should he have to pay your fees? That’s neither here nor there. We can certainly ask for them, and in fact I always do, but I don’t want you to get your hopes up. Attorney’s fees are very rarely paid by the other party and, when they are, it’s by agreement (not by a court order). So, if your husband says he’ll pay them, get it in writing NOW. If he refuses, you’re probably stuck paying for them on your own.
Bottom line? You should carefully research attorneys and options, and pick something that’s in your budget. Need a little help? Check out my book on how to hire an attorney. It’ll give you advice on how to pick an attorney, what questions to ask, and how to stay on track with your budget.

Do I need to hire an attorney? What are my choices when it comes to divorce?

Depending on the type of divorce you plan to pursue, you may not have to hire an attorney. Of course, if you’d feel more comfortable letting a professional handle it for you, that’s fine, too.
In Virginia, you can only get divorced in a couple of ways. You can get divorced in court or with a separation agreement.
A separation agreement is a legal contract that divides all the rights and responsibilities of the marriage between the two of you. The agreement divides all the things that a judge would divide. The major differences? A separation agreement is usually achieved more cheaply, and you have a lot more control over how things will be divided.
If we’re being technical, though, we can break divorce down into three types: uncontested no fault, contested no fault, and contested fault.

Contested Fault Based Divorce

To get divorced in Virginia, you have to have grounds. Your grounds can be either fault based or no fault based. If they’re fault-based, though, you’re automatically in contested divorce territory. Because fault based grounds carry civil and criminal penalties (or, at least, they have the possibility of carrying penalties), you have to go to court to prove your fault based grounds exist. You can’t just agree that they exist; there is evidence required here.
Fault based grounds include adultery, sodomy, buggery, cruelty, apprehension of bodily hurt, desertion, abandonment, and felony conviction. For more information on the fault based grounds (which is just a little bit outside the scope of this article), click here.
A divorce is contested when you and your husband can’t reach an agreement about how everything will be divided. A fault based divorce is always contested, at least as far as it relates to whether your fault based grounds exist. If otherwise things are amicable between the two of you, you could theoretically reach an agreement on how everything else (the liabilities, assets, and responsibilities arising from your marriage) would be divided. We don’t normally see that happen, mostly because in a fault based divorce tensions are already running high and at least one party (the party alleging fault based grounds) is hoping that being able to prove grounds exist will result in a disproportionate award of assets in his/her favor. Though it’s possible to reach an agreement about this part, the divorce would still be classified as contested.
As you can imagine, contested fault based divorces are the most expensive and time consuming because you have to litigate two different issues. You litigate on whether or not your fault based grounds can be proven, and then you litigate the divorce itself and how everything will be divided.

Contested No Fault Divorce

A contested no fault divorce, on the other hand, just means that you and your husband can’t agree about how to divide the assets and liabilities of the marriage. Maybe you have fault based grounds and maybe you don’t, but, either way, you and he have agreed to move forward without using those grounds.
In a no fault divorce, your grounds are your period of separation. Since you don’t have (or choose not to move forward with) any of the fault based grounds, you have to be separated for long enough before you can get divorced. Your period of separation becomes your grounds for divorce. In Virginia, to get divorced, you have to be separated for a period of one year, or six months if (1) you don’t have any minor children, and (2) you have a signed separation agreement.
A contested no fault divorce is less complicated than a contested fault based divorce because you have one less thing to prove. When you get in front of the judge, you’ll just be asking him (or her) to decide how to divide your things. You won’t have to ask him or her to decide whether your grounds are valid; since your grounds would be your period of separation. You’ll have to provide some evidence about your separation, but that’s easy in comparison.
On Wednesday, we’ll talk about uncontested no fault divorces. I know you probably feel like I’ve cut you off in the middle of something good, but you’ll understand more. Most of the divorces we see are uncontested no fault, so we’ll go into a lot of detail then. Stay tuned.
If you’re ready to talk to an attorney now, give our office a call at (757) 425-5200.