I don’t want to waste my money if we can’t reach a separation agreement.

I don’t want to waste my money if we can’t reach a separation agreement

In the beginning of a divorce, it’s hard to know what might happen. In a lot of ways, the beginning is the most difficult time for a divorcing couple, because tensions and mistrust are at their highest. Probably communication is fraught with difficulty, too, so it’s hard for the people involved to have a meeting of the minds on even the simplest of issues.

Often, when a prospective client first sits down, we spend a lot of time talking about separation agreements, and whether he’ll ever sign one.

Spoiler alert: Almost every case ultimately resolves by agreement of the parties. Though we very often do go to court, entire divorce trials where every single issue is litigated are rare. Most of the time, people decide to reach an agreement themselves, though not necessarily without litigation, because it’s insanely expensive and time consuming. (Not to mention, not all that calculated to lead to the best result possible.)

Here’s the problem that most women spot pretty quickly: If we prepare a separation agreement, and then he doesn’t sign, there’s nothing we can do aside from filing for divorce. Women are always hesitant when they hear that, and they worry that they’ll be “wasting” their money on the agreement if they then have to file anyway.

I know it’s scary to think of that happening – it’s always scary to think about having your case go to court and the final decision about what happens to you, the money you’ve earned, and the children you’ve created be in the judge’s hands. But, also… In most cases, we ultimately reach an agreement. That’s not to say that the agreement is easily come by. It’s not! It’s actually rarely EASY to reach an agreement. There’s almost always some back and forth, and some moments where the parties are concerned that negotiations will break down completely. I mean, you guys ARE divorcing!

Sometimes, litigation is involved. Sometimes, one party or the other needs a little encouragement to come to the table in good faith, or something needs to be judicially determined – like, say, temporary spousal support – in order for one party to accept their financial responsibility in the divorce. Sometimes, we reach a decision on most things, but there’s one lingering issue – like custody and visitation – that we have to put in front of a judge. Those things are all normal.

But that doesn’t mean that the separation agreement is wasted, or that it’s preparation was not a good use of your attorney’s time or your trust account funds. Most of the time, even if we don’t immediately negotiate an agreement and we have to file for divorce, we’ll be back to that agreement a little bit later on. It’s rarely – if ever – wasted money.

It’s not uncommon – especially for a husband who doesn’t have an attorney representing him – for a husband to ignore an agreement, refuse to sign it, or insist on ridiculous terms. In that case, you have little choice but to file, and maybe, at the very least, have a pendente lite hearing to determine initial points – custody and visitation, child support, spousal support, etc – before you return to negotiations. It may not be perfectly ideal, but it happens. And sometimes it’s the best way to force him to sit down and negotiate.

Sometimes, you have to push the envelope a little, especially if he’s being ridiculous. And, generally speaking, if you file for divorce, he’ll also be forced to retain counsel, which is good. Him having an attorney means that he’ll be at least somewhat reasonable. He’ll be responsive to court imposed deadlines, complete discovery, and file pleadings that actually mean something. I’ll never forget a husband I had on the other side once who was unrepresented and wrote this crazy complaint and basically wrote that he didn’t want a divorce because he believes that “Virginia is for lovers.”

….What? I’m not sure what legal relevance he believed that would have, but, I can assure you, there’s none. I just tell you that to illustrate the ridiculousness of a husband who tries to manage on his own without hiring counsel.

Life’s not perfect, and divorce – even at it’s best – is complicated. It’s time consuming, expensive, and sometimes doesn’t follow the path we wish it would. In most cases, though, divorces are settled by agreement. Sometimes those agreements are particularly hard won, but that doesn’t mean you won’t get there in the end.

In most cases, I think it’s worth starting out trying to negotiate an agreement. If it doesn’t work out, you’ll have to file – but that doesn’t mean that you won’t be back at the agreement, trying to hammer out terms you both can live with, before all is said and done. Also, I think it says a lot to your husband about how you want to do things, and trying to resolve things amicably between the two of you can de-escalate those rising tensions, and encourage the two of you to negotiate, to focus on co-parenting (if you have children in common), and prevent the relationship from further disintegrating. A lot of times, a little bit of good faith and fair dealing can go a long way.

Not sure what you should do? Sit down and talk with an attorney, discuss your individual situation, and come up with a plan moving forward. Give our office a call at 757-425-5200 if you’re ready to do talk one on one with a Virginia divorce attorney.

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