First steps towards Virginia divorce: don’t rush it!

If I had to give you one piece of advice when it comes to your divorce case, I would tell you to take your time to figure out your options, discover how divorce works, and plan your next steps before you take any steps. It may seem like such a little thing, but it really is best to make a plan before you make a move. All too often, I see women jump into their divorces without gathering any information. In a lot of cases, it works out fine all the same. But it’s just not the best move. After all, why would you make a decision (especially one as big as how to move forward with your divorce, whether to hire an attorney, and, if so, whom to hire) without getting all the information first?

It’s not like jumping straight into action is going to totally mess up your case; it’s just that making hasty, ill-advised decisions can cost a lot in time and money.

Why would it cost me extra to jump into action right away in my divorce?

You’re probably wondering why doing something right away would hurt you financially in the long run. After all, what difference does it make if you hire an attorney now versus later on?

Well, in my experience, the people who jump right into things are usually angry. They’re also sad and worried and overwhelmed. They’re feeling a lot of things, and they probably aren’t thinking about how to handle things in the most productive way possible. They want to do something immediately to make themselves feel better (and, sometimes, they want to get back at or punish their spouse, or just show their spouse that they really are serious), and it makes them feel better to start to move things forward.

Theoretically, it doesn’t make any difference. Whether you file now or six months from now (or six years from now), shouldn’t a divorce be a divorce? Well, yes, it should—in theory. But the reality is that a lot of different factors (like your relative level of anger when you sit in the attorney’s office for the first time) can affect how much your divorce is going to cost and how long it’s going to take.

To understand why, let’s discuss the different “types” of divorce, so you have a better understanding of what your options are—and how they can come into play in the beginning stages of your divorce.

Uncontested Divorce

In divorce, uncontested means, simply, that you and your husband aren’t fighting over how the assets, liabilities, custody, visitation, and support will be handled—you agree. Of course, that doesn’t mean that at the moment you first decided to get divorced you were in agreement. In an uncontested divorce, the two of you negotiate and sign a separation agreement. A separation agreement is a legal contract that divides everything formally. It (the separation agreement, I mean) is filed with the court when your final divorce decree is sent in (at the end of your one year of separation, or six months if you don’t have minor children), and once it’s incorporated it becomes like an order of the court (which means that it’s just the same as if the exact words of your separation agreement came out of the judge’s mouth).

You can get an uncontested divorce in a number of different ways. You can hire an attorney to negotiate the agreement on your behalf, either with your husband directly, or with his attorney if he has retained counsel. You can hire a mediator, who will work together with you and your husband (without advising either of you of your legal rights or what a judge might be expected to order in your case) to reach an agreement. You can hire a collaboratively trained attorney, who will work with you and your divorce coach, as well as your husband, his collaboratively trained attorney and divorce coach, along with a shared financial advisor and child custody advisor, to help the two of you stay out of court and reach an agreement. You can even do it on your own, by negotiating and signing a separation agreement yourself—with or without the help or advice of an attorney.

Uncontested divorces are no fault divorces. What does that mean? Well, it means that, regardless of whether you actually have fault grounds (the fault grounds in Virginia are adultery, sodomy, buggery, cruelty, apprehension of bodily hurt, desertion, abandonment, and felony conviction), you’ve decided to move forward without referencing them.

Since you don’t go to court in an uncontested divorce, they tend to move more quickly, cost less, and result in a higher level of satisfaction for the people involved.

Contested Divorces

If your divorce is contested, it means that you and your husband can’t reach an agreement. A divorce can be uncontested if (1) you can’t agree how everything is going to be divided, or (2) one or both of you plan to use fault based grounds.

If you can’t reach an agreement, you and your husband have to litigate your divorce in court. Ultimately, when you litigate, it is the judge who decides how everything will be divided. The parties to the case (husband and wife) are bound by the judge’s decision, unless it’s overturned on appeal (which is difficult and, therefore, unlikely).

A contested divorce can be a fault or no fault divorce. If you’re alleging fault based grounds, you’ll automatically have a contested divorce, because you’ll have to go to court and provide evidence that supports your claim that the fault based grounds do exist. (It isn’t possible that you or your husband could sign a separation agreement admitting that fault based grounds exist. Because fault based grounds carry legal consequences—sometimes even criminal ones—you have to actually go to court to prove that they exist.)

If you can’t agree about how everything should be divided, you’ll have to go to court for that, too. The judge will then decide for you.

If it’s looking like your divorce is going to be contested, you don’t have a lot of options. You litigate (or, more accurately, your attorney litigates on your behalf), and the judge decides how things will be divided. There aren’t really different options—there’s no negotiation, no collaboration, no mediation, and trying to do it yourself is definitely not advisable.

So, what’s the risk of getting started too fast?

In my experience, it seems like the people who jump into things too quickly tend to lean towards the contested divorce. Because everything is so fresh in their mind, it’s harder for them to have perspective. They’re caught up in the emotion of the divorce, so it’s hard for them to keep in mind that the separation agreement may really be the best option.

Things often seem worse (more traumatizing, less likely to settle, more contentious) in the beginning, and sometimes it takes some time to mellow out so that cooler heads can prevail. It’s difficult for an attorney, who has only just met you, to know whether it’s just your emotions talking and whether it’s possible, eventually, for everyone to cool off. All your attorney has to go on is what you’ve told her, and sometimes that’s just not enough.

You can always start out with a contested divorce and switch over to an uncontested divorce later on, but it can still take more time and cost more money. Instead of immediately starting to negotiate a separation agreement, you’ll file for divorce, schedule a pendente lite hearing, and begin discovery—all costly steps, some of which may be avoided in an uncontested divorce (saving time and money).

On the other side of the spectrum are the people who are paralyzed by fear at the thought of going to court. They tell their attorney that things will soon settle down, and they spend valuable time and money drafting and revising a separation agreement—only to have their husband refuse to sign it at all. At that point, there’s really no option available other than to go ahead and file for a contested divorce.

What should I do to make sure that I don’t waste time or money at the beginning of my divorce?

At the beginning of your divorce, you need to step back and do some careful thinking. What’s best for you? How do you want your divorce to end up? How will your husband react? Is he reasonable? Does he have a hot temper—but generally cools off eventually?

At the end of the day, you know your husband better than your attorney, and it’s up to you to provide your attorney with an idea of what might reasonably happen. Your attorney can troubleshoot with you and help make recommendations, but it’s helpful if you’ve thought of these things ahead of time. If you begin with the end in mind, you can often reverse engineer your divorce so that it’s as productive, cost effective, and successful as possible.

How can I get more information about the divorce process, so I avoid making these mistakes?

There’s no one size fits all solution in divorce, so you’re right to be thinking about making a decision for yourself regarding your divorce. Your divorce is not exactly like your best friend’s sister’s mother in law’s divorce, even if it seems that way. There is no substitute for doing the research and making important decisions that take your unique circumstances, as well as your goals and priorities, into account.

Probably the best way to get the state-specific, attorney-created, divorce information you need is to attend our monthly divorce seminars, “Second Saturday: What Every Virginia Woman Needs to Know About Divorce.” The seminars are available at a very low cost (just $50 at the door, and $40 if you pre-register online), taught by one of our licensed and experienced Virginia divorce attorney, and cover basically everything you need to know to make an informed decision about how to proceed with your divorce.

Another great way to get more information about the divorce process is by requesting a free copy of one of our books. Since you’re facing a divorce, probably the best choices for you would be either “What Every Virginia Woman Should Know About Divorce,” or, if you’re in the military, “What Every Virginia Military Wife Needs to Know About Divorce,” which you can request for free on our website. If you’re interested in hiring an attorney, check out, “The Woman’s Guide to Selecting and Outstanding Divorce and Custody Lawyer” to make sure that you’re on the right track when it comes to deciding whom to hire.

Of course, you can always schedule a one on one consultation with one of our attorneys, if you’re dying to get specific, targeted information about your particular case. We’re waiting to talk to you, and we’ll help you make a carefully considered decision about what would be best in your situation (without any pressure from us for you to hire). We’ll listen objectively and help you come up with a plan of action that addresses your goals and priorities. Give us a call at (757) 425-5200 for more information, or to set up an appointment now.

 

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