When it comes to divorce, you have a lot of different options. So many options, in fact, that most 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 to choose from.
To hear most lawyers talk, that’s probably true—we do tend to talk about divorces as different “types”. In reality, though, there aren’t that many types at all.
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 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 and, ultimately, let the judge decide 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, with an uncontested divorce.
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’s post isn’t designed to cover all the differences and nuances between the different kinds of fault, but just to let you know that these grounds exist.
To get divorced, though, you must have grounds. If you don’t have fault based grounds (or if, for the sake of the peace, you choose to move forward without reference to them), you have to use no fault grounds. No fault grounds use your period of separation as grounds for your 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.
If you have a contested divorce, it can be either fault or no fault based. Either way, you’ll litigate in front of a judge. If it’s 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 already imagine, it’s easier to have a no fault contested divorce than a fault based contested divorce (because you’re litigating fewer issues).
An uncontested divorce, on the other hand, is always no fault. You can’t just write in your separation agreement that you agree to get divorced using fault based grounds. 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. 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.
Most divorces these days are uncontested, no fault divorces. We’ve already talked a little bit about why—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. Usually, too, they result in the highest levels of satisfaction post-divorce because, as opposed to having a judge mandate how things should be divided, people who get an uncontested, no fault divorce negotiated their divorce. They have a lot more of a say in the outcome, and that makes for much, much 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, etc) are divided.
The coolest thing about separation agreements (aside from the 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. For example, a judge would either award spousal support or not; a judge wouldn’t take the time to structure a spousal support award that decreases over time as one spouse becomes more independent, or arrange it so that the money is used towards higher education expenses. Judges view divorce as a business transaction, and generally just want to get things divided as quickly and efficiently as possible.
Another 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.
The moral of the story? 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. Separation agreements are pretty great.
That being said, though, there’s no right or wrong way to get a separation agreement in place, and, typically, this is where we start talking about different types of divorce. Up until now, 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 collaborative divorce (more on that coming up this Friday, so stay tuned), or, alternatively, you could hire a mediator.
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.
So, what is mediation, and how does it work?
In mediation, you and your husband work with one shared mediator. It is the mediator’s job to help you reach an agreement. He (or she) will facilitate your discussion, help you move past roadblocks, and make settlement suggestions to help the two of you reach a mutually acceptable separation agreement.
A mediator is generally cheaper than an attorney, partially because you share one between the two of you, rather than hiring one on each side. Still, mediators have limitations. For one thing, most of the time, mediators are not also attorneys. And, even if they are also attorneys, when you hire a mediator, you aren’t hiring him (or her) in his capacity as an attorney.
It is an attorney’s job to look out for your best interests, give you legal advice based on your situation, tell you what a good deal is, and advise you about what you might expect to receive if you were to go to court. It’s not a mediator’s job to do any of those things. A mediator’s job is simple: to help you and your husband reach an agreement—any agreement. He won’t tell you what a good deal is, or what the law says. He won’t advise you that you could do better in court, or have your back when you feel like you’re up against a wall. He’ll try to keep the discussion civil and productive, but that’s to facilitate the agreement, too, and not to help make sure that your interests are effectively advocated.
Mediators are great in a lot of ways, but, if you’re expecting a mediator to act like an attorney, you’ll likely be disappointed. If you just need some help reaching an agreement, though, a mediator can be a very effective and cost conscious choice.
If a mediator isn’t a lawyer, and isn’t there to give me advice, what should I do to make sure I’m not taken advantage of in mediation?
I do always worry that women who go into mediation will be taken advantage of. It’s a pretty legitimate concern!
Lots of women still elect to move forward with mediation for lots of different reasons—usually, because it’s cheaper and they don’t want to have to hire an attorney. Still, there’s a lot at stake in a divorce case, and it’s not worth risking getting a bad deal.
Usually, in cases where women indicate that they want to move forward with mediation, I recommend that they meet with an attorney both before and after mediation. You don’t have to hire an attorney just to talk to one; most attorneys will meet with you at their hourly rate if all you need is a little legal advice. This way, the cost is minimal, but you still have the opportunity to ask your questions to someone whose only interest is to make sure that you’re well represented and getting what you are entitled to receive in your divorce.
Beforehand, an attorney can give you an idea about what you might expect to receive, what a normal range of possible outcomes might be, and how a judge would likely decide your case. Afterwards, the attorney can go over the proposed agreement with you, make sure it says what you think it says and understand all the possible ramifications of signing it.
Meeting with an attorney can provide you with extra protection so that you don’t get bull dozed when you least expect it. It helps ensure that there’s someone in your corner who can give you advice that is exclusive to you, so that you can walk into mediation with your head held high.
When is mediation a good idea? Is it sometimes a bad idea?
Most attorneys have pretty mixed feelings about mediation. We’ve seen good outcomes, and we’ve also seen terrible outcomes. On the surface, as a way to reach resolution without spending a fortune, mediation seems pretty awesome.
We’ve already discussed some of mediation’s specific limitations. Another limitation, though, that bears mentioning is that mediation is dangerous (or perhaps impossible) in a situation where there’s a imbalance of power. If your husband is dominating or controlling, it may be difficult for you to mediate your divorce with him. He may fall back on his ways of manipulating you and, if you’re not comfortable standing up to him, mediation really isn’t a desirable place for you to be.
Ultimately, you know your husband best, and it’s always a good idea to think carefully about your options before committing to any particular course of action. Mediation is a good way to get divorced in a lot of situations, but it’s by no means the only way.
If you’d like to schedule a consultation to talk about upcoming mediation, give our office a call at (757) 425-5200.