Virginia Collaborative Divorce

Posted on Oct 16, 2015 by Katie Carter

You have a lot of different options available to you when it comes to divorce. You have so many options, in fact, that many of the women that I see in my consultations or at my Second Saturday divorce seminars are convinced that there are many different “kinds” of divorce from which to choose.
To hear most lawyers talk, it sounds like it’s true—we do tend to talk about divorces as different “types”. In reality, though, there aren’t that many truly different types of divorce at all.

How are divorces usually classified? Fault, no fault, contested, uncontested

Divorces are typically broken down into a couple of categories—contested and uncontested, fault and no fault. Contested and uncontested refer to whether it’s possible to reach an agreement (in writing) regarding how the couple’s assets and liabilities will be divided. In a contested divorce, an agreement can’t be reached, and the couple usually end up having to litigate their divorce in court which means that, ultimately, the judge decides how everything should be handled. In an uncontested divorce, on the other hand, an agreement CAN be reached, and the couple move forward, after signing a separation agreement, without going to court or letting the judge decide.

What does it mean if a divorce is fault or no fault based?

Fault and no fault deal with whether there are fault based grounds for the divorce. Fault based grounds, in Virginia, include adultery, sodomy, buggery, cruelty, apprehension of bodily hurt, desertion, and abandonment. Today we aren’t trying to cover all the different types of fault and exactly what they mean, but just to let you know that these grounds exist.
To get divorced in Virginia, though, you must have grounds. If you don’t have fault based grounds (or if, for the sake of keeping the peace, you choose to move forward without using them), you have to use no fault grounds. When you get divorced using no fault grounds, your period of separation becomes your grounds for divorce. In Virginia, you have to be separated for one year before you can move forward with a no fault divorce unless you meet two criteria: (1) you don’t have minor children, and (2) you have a signed separation agreement.
A contested divorce can be either fault or no fault based, but either way, you will have to litigate in front of a judge. If your divorce is fault based, though, you’ll litigate to prove fault (using evidence and witness testimony) to the satisfaction of the judge, and then you’ll litigate on how the assets and liabilities of the marriage should be divided. If it’s no fault, you’ll only litigate on how the assets and liabilities of the marriage should be divided. As you can probably tell, it’s easier to have a no fault contested divorce than a fault based contested divorce (because you’re litigating on fewer issues).

Uncontested divorces are always no fault. Because of the civil and criminal (in some cases) penalties involved with fault based divorces, fault is something that has to be proven in court to the satisfaction of the judge. You can’t just write out a separation agreement agreeing to move forward with a divorce on fault based grounds; it sounds easy enough, but it just doesn’t work that way. If you want to negotiate an agreement (which is generally the cheapest, easiest, and most efficient way to get a divorce), you’ll have to forego using your fault based grounds and instead use your period of separation as grounds for your divorce.

These days, most divorces these days are uncontested, no fault divorces. Why? We’ve already touched on it a bit, but, for starters, they’re cheaper and easier, because you don’t have to go to court and pay two separate attorneys to present two different sides of the story. Most of the time, people who’ve negotiated their own separation agreement are the happiest after divorce, too. It makes sense, if you think about it. Rather than having a judge mandate how your things (and children!) should be divided, people who get uncontested, no fault divorces have a say in how it all goes down. Having a say generally translates into happier people overall.

What’s a separation agreement?

A separation agreement is a legal contract that divides all the assets and liabilities in a marriage. In a separation agreement, everything from custody to child and spousal support and division of the marital property (houses, cars, retirement accounts, and so on) are divided.

The coolest thing about separation agreements (besides the very important fact that they save you from going to court) is that they give you a lot of freedom in determining how everything will be divided. When judges decide how things will be handled, they don’t usually give a lot of thought to what would be the most creative and effective solution for the people involved. It’s not because they don’t care; it’s mostly because there really isn’t time built in to the docket for things like that. Judges view divorce as a business transaction, and generally just want to get things divided as quickly and efficiently as possible.

An example: I once had a case where a couple was fighting over how to divide a car, and the judge told the couple that if they couldn’t decide, he would have it auctioned off. He admitted that they’d get less for the car that way than if they agreed about what to do or sold it through a private seller, but said it was the easiest and fairest thing he could do. Soon after, the couple agreed about how to handle it, maximizing the money in their pockets at the end of the day.
So, what am I really trying to tell you? It’s not that judges are cruel and heartless, or that they don’t care. The reality is that judges don’t have the time or the background knowledge to be as creative as you could be, and they definitely aren’t nearly as invested in the outcome. So, separation agreements are pretty great.

So, wait, what are the different “types” of divorce?

When we start talking about different types of divorce, we start talking about separation agreements. There’s no right or wrong way to get a separation agreement in place, and there are lots of ways we see things get done (and done well). Up until this point, we’ve really only talked about divorces where you to go to court or cases where you negotiate an agreement.

But, when it comes to getting an agreement in place, you have a LOT of available options. You can hire an attorney to draft one for you, or you can draft one on your own. You can also move forward with a mediator, or a collaborative divorce.

Whether you’re talking about negotiating with or without an attorney, mediating, or collaborating, you’re talking about an uncontested, no fault divorce with a separation agreement. The end is still the same, but there are a number of different means you can choose to help reach that end, depending on your unique circumstances and what, in your opinion, is truly best for you and your family.

What is collaborative divorce and how does it work?

If you’re interested in moving forward with a separation agreement, a collaborative divorce can be a good way to go. It’s more involved than some of the other ways (like mediation), but it definitely has some distinct advantages.

To get started with a collaborative divorce, you first have to hire a collaboratively trained attorney. Then, your husband would have to hire one, too. In a sense, this is a little bit more difficult than other types of divorce, because you have to make a big decision (whether or not you want a collaborative divorce) at the beginning. It’s an especially big decision because, once you make it, it’s difficult to change your mind.

In a collaborative divorce, you and your husband make a pledge not to go to court and to provide all the information to each other. It’s not adversarial, the way a traditional divorce is, and the four of you work together along with the other members of your team to reach an agreement.

Your team includes you and your husband and your attorneys. In addition, you’ll each hire a divorce coach (a licensed mental health professional), who is there to help make sure that you are successful as you move your divorce forward, and then you’ll share both a financial consultant and a child consultant. The financial and child consultants are there to help recommend the best course of action for the family moving forward, without only looking at one person or the other.

Who chooses collaborative divorce?

Typically the people who choose collaborative divorce have a family-owned business or have kids in common. Whatever the reason, they’re committed to coming up with an amicable solution that allows both spouses to move forward.
In collaborative divorce, everyone works together, so it’s a much better atmosphere than other traditional types of divorce.

How much does collaborative divorce cost?

As you can probably imagine, collaborative divorce is typically on the pricier side. Because you both have to hire attorneys, and then all the professionals, the costs add up. It’s hard to estimate ahead of time, because some collaborative divorces settle so quickly and others take much longer. Still, it’s safe to say that (in the vast majority of cases, at least) collaborative divorce is more expensive than negotiated or mediated divorces, but less expensive than litigated ones.

What happens if it doesn’t work?

Collaborative divorce is successful in something like 99% of cases. But, when it isn’t, things get complicated. Because collaborative divorce is less adversarial, it’s treated differently. Because there’s al “all cards on the table” mentality, your collaboratively trained attorney can’t represent you collaboratively and then represent you traditionally. If collaboration fails, you have to retain new counsel.

Why? Well, since you treat the divorce like an open book, your attorney can’t ethically have access to all that information and then use it to litigate against the other side. It works that way in mediations, too. When attorneys and clients work together to reach an agreement, usually any settlement offers made (or confessions made in connection with settlement offers) are inadmissible later in trial. This is because the court likes to facilitate settlements. If those types of details were admissible later, it would discourage parties from making offers for the purpose of reaching settlements. It’s a way of protecting people acting in good faith, and of keeping as many cases as possible off the court’s docket. Similarly, in a collaborative case, you’d have to retain new counsel if negotiations fell through. It’s just the court’s way of promoting and encouraging settlement.

Collaborative divorce is a great option for people who are committed to moving forward with an amicable, productive divorce. If, for whatever reason, it’s necessary for you and your soon to be ex to work together on this divorce or co parent in the future, it’s a great way to keep things as light and friendly as possible, and to take both people’s interests into account. Though it may be pricy, people who go through the collaborative process are often the happiest with their outcomes.
If you’re interested in collaborative divorce, give our office a call at (757) 425-5200