Handling divorce and custody separately

It happens sometimes – though I definitely don’t prefer it – that custody is handled separately from the rest of the divorce proceedings.

It can happen for any number of reasons. Like everything else, divorce and custody cases are highly variable, and all sorts of things can happen that can result in people choosing to take a specific course of action that might not be appropriate for someone else. Most of the time, though, I think it’s fairly safe to say that custody, visitation, and child support are handled separately from the divorce for a couple of reasons – for one, because custody and visitation are so emotionally charged that the parents need resolution of these issues immediately, and, for another, because financially the support of a child (or children) can be so great that one party can’t afford to move forward without establishing child support.
Separating out divorce and custody, though, is generally pretty inefficient. Rather than sitting down at one time to handle all the issues involved in your case, separating them out tends to drag a case out for longer, cost more money, and take longer – but still, there can be reasons to do it, and people choose to handle things this way all the time.

Handling custody and divorce by agreement

Generally speaking, when it comes to handling divorce and custody cases, you have two options: reach an agreement, or to go to court. It doesn’t matter what kind of case we’re talking about, those are essentially the two options.

In most cases, its preferable to handle things by agreement. Why? Well, it’s cheaper, easier, quicker, and, probably most importantly, it allows you to have the greatest degree of control over the outcome. How can that be? The answer is simple. If you go to court, you leave everything up to the judge. If you negotiate on your own, you can come up with whatever complicated, specific, nitty gritty details you want – details that, frankly, the judge won’t have time to consider. That’s not to take away from the judge’s abilities, it’s just a statement of fact. The judge can’t be as creative about a custodial arrangement (or anything else, for that matter) as you can. He doesn’t have the time or the expertise about your family; besides, veering away from the traditional custodial arrangements the court favors could be considered highly prejudicial to one side or the other and could lead to the judge being overturned on appeal. (In case you weren’t already aware, judges HATE that.)

So, if there’s something specific you want and you and your husband are able to negotiate, it might be worthwhile to spend a little time in advance trying to reach an agreement first.

You can do this in stages; that happens sometimes. You can reach an agreement for custody, visitation, and child support, and then come back later and determine everything else related to the divorce, also by agreement.

Advantages? If you negotiate custody and visitation first, then you’ll know what’s happening with the kids. I think that uncertainty is one of the more difficult things for most moms to deal with as divorce and custody are pending, so it can be a huge relief to at least have custody and visitation settled and off the table once it comes time to talk about how to divide the assets and liabilities of the marriage. Sure, money is important, but sometimes I find that it’s hard for a mom to even focus on her financial best interests while anything related to the kids is still outstanding.

Disadvantages? There’s no question that this is not particularly cost effective. Too negotiate two agreements rather than one is more difficult, takes longer, and costs more. There’s almost always a lot of revisions that go back and forth before an agreement is reached, and to do that twice…well, it’s often significantly more expensive that way.

Handling divorce and custody in court

Often, custody and visitation petitions are among the first things that are filed by worried parents. Even though a divorce is also a concern, custody and visitation are generally at the top of the list – and sometimes petitions get filed really early in the process.

Court is…risky, to say the least. It always depends on the judge you get. There’s a lot of variability. It can be hard to know, for sure, ahead of time, what kind of gamble you’re making, so it’s always a little scary to put on all the evidence and let the chips fall where they may – obviously, that’s especially true where your children are concerned.

When custody petitions are filed early on, there are a couple of things you should be aware of.

1. Retroactivity.

One of the best things about filing for custody, visitation, and support right away is that child support can be awarded retroactively – back to the date that the petitions were originally filed. (Obviously, this can be a major reason why you might want to file sooner rather than later, especially if you’re feeling the pinch financially.)

This way, you don’t have to wait until an agreement is signed, or waste several months trying to negotiate but ultimately have it come to nothing. You can file now, and ask that the judge award child support back to the date that you filed – a huge relief for many a mom.

2. Appeals.

Keep in mind, too, that if you petition the court for custody, visitation, and child support, you can appeal the ruling to circuit court if you get a verdict you don’t like. An appeal to circuit court is an appeal de novo, meaning that you get an entire new trial – and nothing about the old case will come up with you. You get a total do over! (But, on the flip side, if HE doesn’t like the verdict, he can appeal it, too.)

3. Divesting jurisdiction.

If there’s a divorce case pending in circuit court, the juvenile court won’t be able to keep jurisdiction over the custody, visitation, and support issues.

So, if court is coming up, either you or your child’s father can file for divorce in circuit court, and then keep juvenile court from being able to render a decision. This can be good strategically, especially if court kinda snuck up on you and you want to avoid it at the last minute, or bad if the opposite happens, and you and your attorney have prepared for court, only to have your husband file for divorce.

4. Modification

Keep in mind, too, that custody, visitation, and child support are modifiable based on a material change in circumstances. In Virginia, custody is determined based on the best interests of the child and, obviously, that’s something that can change over time – so, too, can custody, visitation, and child support, in keeping with the whole “best interests” theme.

Usually, courts won’t hear and re-hear petitions for custody over and over; there has to have been a material change, and a reasonable period must have elapsed – usually, something like 6-12 months.
Sometimes, divorce and custody are handled separately. Is it the best course of action for you? It’s hard to say. Though I typically find that this is a more expensive route to take, I think that there can be reasons to justify the choice. The best way to determine the most cost effective, appropriate, effective, efficient course of action for you, in your unique circumstances, will be to schedule an appointment with a licensed, experienced Virginia attorney who can help come up with a course of action, complete with an in depth discussion of the potential advantages and disadvantages associated.

For more information, or to schedule an appointment with one of our attorneys, give our office a call at 757-425-5200.

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