How do I know if my divorce will go to court?
I spend a lot of time talking about how to get the best divorce. Most of the time, I have to say that the way to get the best divorce is to negotiate a signed separation agreement. There are a lot of reasons why you might like to do things this way. For one thing, it saves a ton of money (which you can use to get that fresh start you’ve imagined, put in your kid’s college fund, invest, or safely save away in your retirement accounts). For another, it takes the kids and the families into account. Rather than dragging everyone through a complicated court case, separation agreement cases tend to settle quietly and allow the parties involved to return to normal quickly. Even coparent. Sometimes, the parties even stay friends afterwards. Do you need a third reason? It also saves time. Simply put, fighting takes longer. And why fight, when it doesn’t typically yield better results?
Still, that being said, there ARE cases where we have no choice but to fight. I’m not scared to go to court. In fact, I like going to court. I think it’s fun and challenging. But, as a lawyer, it’s not my job to do what I like to do. It’s my job to make sure that my client’s best interests are protected. Not all clients are the same, either. So, although I can make generalizations about what I find is usually in a client’s best interests, I also want you to know that, in every single case, I ask myself what is in that client’s best interests and how I can accomplish whatever that might be.
Not every case is capable of being settled out of court. If you know (or, at this point, simply suspect), that your case is one like that, you’re not alone. In fact, you’re in the right place. This article is written for you.
If you’re afraid that you’re going to wind up in court, take a deep breath. It’s going to be okay. It’s definitely not the worst thing that can happen, but it’s helpful if you know, ahead of time, exactly what to expect.
What types of divorce cases end up having to go to court? How can I tell if my case is one of those?
First of all, you should know that, even though many, many cases start out with tensions running super high, they usually calm down over time. So, even though you may feel, as I start to talk about the red flags I see and the things that make me think we may have to go to court, that you absolutely fall into one (or even more) of those categories, that doesn’t necessarily mean that your divorce will be contested.
We can file for divorce using fault based grounds, which just allows us to use the teeth of the court to move your case forward. That’s a major benefit, in a lot of cases. Why? Well, take a separation agreement case for example. If we send a draft separation agreement to your husband, he doesn’t have to do anything. He can ignore it completely, and there’s nothing we can do to force him to recognize us. We can’t ask the court for any help, either, because there’s no case filed before it, and, even if there were, the court can’t force a person to reach a settlement.
In a divorce filed before the court, on the other hand, we can set hearings and request discovery—all of which will help move the case forward, whether he likes it or not. That’s a major advantage to you, because, if he’s difficult or doesn’t want the divorce, there are things we can to do move your divorce forward anyway.
Anyway, there are certain types of cases that do tend to head towards contested divorces. Without further ado…
1. If your husband doesn’t want the divorce
Divorces are always harder when one party doesn’t want it. If we send him a separation agreement and he refuses to cooperate with us, there’s nothing we can do. Without some type of cooperation on his part, it will be difficult to move things forward.
He can’t stop the divorce because he doesn’t want it, but without filing for divorce it can slow things down fairly considerably.
2. If your husband refuses to negotiate
Every so often we get a husband who absolutely refuses to negotiate with us at all. We can’t make him sign a separation agreement, so we would have no choice but to file for divorce in this type of case.
A point blank refusal to even discuss the terms of the divorce would leave us little choice, if you’re committed to moving your case forward.
3. If your marriage was abusive
A lot of times, in marriages where there was physical or emotional abuse, reaching an agreement really isn’t possible. Because there’s such an unequal balance of power between partners, one is tempted to give in to everything just to avoid facing the wrath of the other.
These types of cases are especially bad candidates for mediation or collaboration; though it MAY be possible to hire an attorney to negotiate on your behalf, if you’re the victim of an abusive relationship, this might not be the best situation for you to find yourself in.
4. If your husband has cut you off from access to the marital money
A lot of times we find, when parties separate, that the higher earning spouse (in this example, let’s assume we’re talking about the husband, though that’s not always the case) starts having his paychecks direct deposited into another, separate account to which the other spouse has no access. He then also stops contributing financially to the upkeep of the family or the home, which pretty quickly results in the other spouse being in a difficult financial situation.
We see this a lot, and it’s always tricky. Because the wife has been cut off from access to all the marital accounts, there’s little she can do—except file for divorce. That way, we can get into the courts quickest, and we can ask for temporary child and spousal support (in the pendente lite hearing, which we’ll discuss a little more later).
5. If your husband refuses to hire an attorney
Just because your husband hasn’t hired an attorney doesn’t mean we can’t negotiate, but sometimes they know just enough to really be dangerous and slow things down. If he’s holding up progress and being a general pain in the you-know-what, it may be best to go ahead and file for divorce . At that point, he’s more likely to hire an attorney, which will help move things along.
Though you’ll probably hate your husband’s attorney as a matter of principle, him having an attorney is usually a good thing. Attorneys counsel their clients to behave reasonably and even guide them about what they should ask for. Without an attorney, he’ll likely ask for everything, regardless of whether a judge would award it, and generally be difficult. Most attorneys won’t let that kind of stuff happen, preferring instead to focus on issues that can legitimately be litigated. (Besides, him behaving like that won’t make him a good witness in court, which the attorney will certainly notice and attempt to correct.) It means good things for us, but mostly it makes for a much more civilized process.
What does a retainer look like for a contested divorce?
This is the biggest problem. I already told you that, a lot of times, even though things start out contested, they settle down over time. So, even though you start out with a contested divorce, yours may actually be uncontested. In many cases, only time will tell.
Still, if you start out contested, you’ll have to retain an attorney for a contested divorce—which means you’ll have to pay a contested divorce (rather than an uncontested divorce) retainer.
It’s probably safe to say that a contested divorce retainer in our area typically ranges between $5,000-10,000. It could be more, of course, if your case is particularly complicated or raises a novel issue of law, but that’s a good sort of benchmark of what to expect.
What’s a pendente lite hearing, and how can it help me?
A pendente lite hearing is especially helpful in a case where the wife has been cut off from access to the marital money. Pendente lite is Latin for “while the litigation is pending,” and it’s basically a temporary support hearing.
It’s not designed to handle issues of fault; it’s just designed to make sure the bills get paid, and the children are supported. At the pendente lite hearing (or PL hearing, as we normally call it), you can get temporary child and spousal support, as well as ask for a couple other important things, including:
• Ask that the marital resources not be wasted (so that no one can spend a bunch of money or sell off valuable assets while the divorce is pending),
• Request exclusive possession of the home,
• Force your husband to stop interfering or harassing you,
• Get a temporary custody arrangement in place, and
• Make your husband keep you on his health insurance until the final decree of divorce is entered.
Depending on the issues you’re facing, a PL hearing can be a great way, at the beginning of yoru case, to make sure that you’re as protected as possible.
What if things don’t settle down and we have to litigate all the way through?
Sometimes that happens. You can’t obsess now over something that “might” happen, though. Most of the time (in fact, almost all of the time), these things settle.
If they don’t, you’ll want to be sure that you’ve hired an experienced attorney to help you navigate the court system. At the end of the day, you may not feel like you got your “day in court” or even that the judge particularly liked you, but there’s also not that much to be scared of. Your attorney will guide you through.
What do I need to know before I go to court?
Your courtroom behavior is super important. Remember: the way you present yourself really, really impacts how the judge thinks about you. As far as the judge is concerned, yours is just a case he has to handle; it’s not an emotional thing. If you get up in front of him and you’re angry or yelling or crying, he’s going to have a harder time liking you. A few dignified tears are fine, but, for the most part, you should do your best to keep your emotions under control. Don’t roll your eyes, suck your teeth, sigh, grimace, or contradict your husband (or his attorney) while he’s speaking.
Keep your composure. Sit up straight. Dress in your churchgoing clothes. Usually, a sweater and a skirt or a nice dress and a cardigan are good bets. You don’t want to look like an attorney. Sit straight and tall in your chair, and keep your expressions calm. Don’t scribble a bunch of notes frantically to your attorney; if you must ask a question, write calmly and deliberately.
Going to court isn’t the worst thing that can happen. Your attorney will prepare you for whatever you will face. In certain, specific cases, we don’t have a lot of choice; going to court CAN be the best possible decision for our client. In your case, if going to court is necessary, then you should start preparing yourself for going to court. Talk to a therapist. Get a friend to come with you. Do whatever you need to do to make sure that you’re in the best shape possible for the courtroom. You can do it.
For more information about contested divorces, to get more information on our divorce seminar, Second Saturday: What Every Virginia Woman Needs to Know About Divorce, or to schedule a consultation with one of our attorneys, give our office a call at (757) 425-5200. We’re here to help.