Am I being unrealistic in my Virginia divorce?

Posted on Jul 13, 2016 by Katie Carter

No two divorces are ever the same—though, obviously, there are some similarities. Still, women come into our office all the time asking for very different things. One tells us she doesn’t really care about anything, she just wants out. Others tell us, over and over, that they think they should receive astronomical levels of support and all of the retirement, plus full custody and total discretion over when (and if) visitation ever occurs.
There are dangers at both ends of the spectrum, and there are more people who fall somewhere in the middle than there are outliers who fall at these extreme ends. It may seem surprising, but it’s far more common for us to see a woman who says she doesn’t care about anything than a woman who demands to receive everything. Either way, though, these outlooks are unrealistic.
It’s not realistic to ask either for too much or too little in your Virginia divorce. Could you be guilty of falling too near one of these sides? A good way to find out the answer to that question is by talking to a Virginia divorce attorney one on one; having a chance to disclose your assets and liabilities and have an open and honest conversation with an attorney is a good way to figure out what you might be entitled to receive in your divorce. We can talk to you about what we expect to see in a normal case, but also what types of ranges might be acceptable in your particular case.

If you’re asking for too little…

There are probably a number of reasons you fall into this category. Maybe you just want to avoid a fight. You know he’ll never agree otherwise, and you’ll end up having to go to court. Maybe you have tons of money you inherited in a Swiss bank account, and you don’t need the marital assets. (Just kidding on that last one.) Whatever your reason, it’s understandable that you feel this way. It’s tempting to walk away, for some, to avoid the drama that comes with asking for what you deserve.
You have to remember, though, that the law isn’t willing to give you something to which you have no entitlement. The reason why you get, for example, 50% of the marital share of his retirement (which is often different from a full 50%, but you can read more about how retirement is divided here), is only because you participated in earning it. Even if it wasn’t your job, simply by being married, you provided support to your husband made it possible for him to earn that retirement. To the extent that it’s marital (though there could be part that is separate, if he earned it before you got together or after you separated), it stands to be divided.
Remember that divorce is one of the biggest financial transactions of many adult’s lives, and frequently women walk away from their divorces with less than they had before. You’re dividing a lot of important things—real estate, retirement accounts, savings accounts—and they’ll have an impact on your life long after your divorce is finalized. Don’t walk away from something you’re entitled to just because you’re scared that he might put up a fight. Consider your needs now and imagine what you might need post divorce. Talk to a tax advisor or a financial professional, and come up with a plan for yourself. Work with your divorce attorney, and make sure that your final divorce reflects your new financial plan.
Asking for too little isn’t traditionally what you might think of when you’re considering unreasonable people—but, in a divorce, it can be so detrimental that it is unreasonable.
Are you wondering what to ask for, or not sure what you might be entitled to receive? This is a good conversation to have with a divorce attorney. Let your attorney’s suggestions be your guide. Remember, too, that you and your husband are no longer members of the same team. You can’t rely on him to give you straight forward answers about what you do and don’t deserve.

If you’re asking for too much…

You probably don’t think it’s too much. In fact, you probably have a friend who just got absolutely every single thing that you’re now asking to receive, and it may be difficult for you to talk to someone who tells you that you’re not going to get all of the things that you’re after.
I had a client just the other day who told me that she was going to get 3/5 of her husband’s income in spousal support because the military guidelines say so. We have had several chats over the last couple of months about how that’s not the case, because the military guidelines are not applied by the state courts. Military guidelines are, in fact, just that—guidelines. They’re not the law and, in fact, they conflict with Virginia state law. (For more information about military guidelines for support and how support is determined in a Virginia military divorce, click here.) Nothing I said made any difference; she was absolutely convinced of what she deserved to receive, and was determined that she would get it.
In Virginia law, there are places where there is wiggle room. There are other places where you sort of have to accept what the law provides. Child support, for example, is based on a formula. Based on the amount of time both parents have the child, the numbers go into the formula, and child support is set based on the number that pops out. Likewise, Virginia law doesn’t require parents to provide support for their kids beyond the age of 19 or graduation from high school, whichever occurs sooner. If you’re wanting college tuition support for your 20-something kid, you’re going to have a hard time getting it—unless your child’s father agrees with you (in writing).
Believe it or not, it’s not particularly enjoyable for an attorney to tell a client that what they want is something they can never hope to achieve. We prefer, believe it or not, to win everything our clients want—but the law doesn’t always make that possible.
If you’re finding yourself wanting absolutely everything, it may be time for you to talk to an attorney, too. Ask the attorney what he or she thinks you can expect to receive, and what high or low estimates would look like. Ask if you’re being unreasonable, or asking for too much. Ask what the law guarantees you, and where there’s some wiggle room. Spend some time thinking about where your priorities lie, and discuss those with the attorney. Talk about plans to make sure that you get the part of the marital assets that you want most.
Remember that your husband will walk away with some things, too. In fact, most divorces are relatively close to 50/50—it’s just a question of maximizing that 50%, and making sure that you walk away with the 50% that matters most. You’re not maximizing your 50% if you’re spending tens of thousands of dollars in legal fees fighting, or, sometimes, if you can’t reach a decision yourself. Remember that the judge views a divorce as a business transaction and, often, if you can’t decide between the two of you, he will reach a decision the fairest way he knows how: sell an asset, and split the proceeds. Trust me—that doesn’t always work out to your advantage.
I had a case like that once, where husband and wife were fighting over a car that wasn’t worth very much anyway. We went in front of the judge because we couldn’t decide, and the judge told them that if they couldn’t agree, he would sell it at auction and split the proceeds. Would they get less for the car? Yes, the judge acknowledged that. But could they deny that this was a fair disposition? Nope. They were stuck. The judge let us go back out to the hallway to try to decide how we’d split the car and, lo and behold, husband and wife were finally able to reach an agreement.
In many cases, it isn’t best to leave things in the judge’s hands. You’ll likely get more (both in terms of monetary value and in terms of getting what you want) if you can reach an agreement.
Talk to an attorney. Ask questions. Figure out what you want and go from there. It may not be the answer you wanted to hear, but it’s practical advice that will serve you well—both now, and after you divorce.  It’s better to figure out now what’s realistic and what’s unrealistic in your Virginia divorce, so that you can begin to plan the steps you’ll take as you move forward.
For more information, or to talk to one of our licensed and experienced Virginia divorce and custody attorneys one on one about your specific situation, give our office a call at (757) 425-5200.