Should I file for divorce? Or custody? Is there an advantage?
I follow up with women who’ve had consults with us – with any of our attorneys, not just the ones who meet with me – after their appointments, just to make sure that they got their questions answered in the appointment.
I find that, in a lot of cases, they either forgot to ask something, or that, after they left the appointment and started thinking a little bit more about what the attorney said, they had a clarifying question to ask (or, like, twelve).
A lot of things can happen. Being in front of an attorney can be intimidating. We try really hard not to make it feel that way but, nevertheless, I think it still probably does. When you’re on the spot, too, it can be hard to think an issue all the way through, or spot any potential problems that you might run into. You might also hear a word or two that the attorney sort of explained in the moment, and you thought you understood, but then you close the door and go home and suddenly can’t make sense of it anymore. (I know how you feel; it happens to me all the time at the doctor’s office.)
We find it can be helpful to have someone – like yours truly – follow up. I enjoy it, too, because it helps me understand the questions that people are asking and to figure out where there are gaps in their understanding. If we’re not explaining things well enough, we need to know so we can do better!
I had one such question yesterday from a woman who met with one of our attorneys and was ultimately given a retainer agreement for a separation agreement.
As background, first I’ll just say that there are essentially two ways to get a divorce in Virginia: by an agreement negotiated between the parties, and in a litigated trial where a judge will decide (based on the evidence, exhibits, witnesses, and testimony introduced by the parties and/or their attorneys). That’s it – those are the only two ways.
Depending on what you’re using as your grounds will impact when you can file for divorce, since you can’t file until you have grounds. Using fault based grounds – so, adultery, cruelty, apprehension of bodily hurt, desertion, abandonment, or felony conviction – you can file as soon as those grounds exist, so long as you have a reasonable belief. You don’t have to prove it to file; you’ll prove it at trial.
If you use no fault grounds, though, you can’t file until you’ve been separated for a year (or six months if you meet two criteria: that you’ve signed a separation agreement, and that you have no minor children). The separation period is what makes up these no fault grounds, so you must be separated to file using them.
The woman asked me whether she should go ahead and file for divorce – and whether there was any advantage to her doing so – or maybe just custody?
Those questions, combined with realizing that she had been given a retainer agreement for a separation agreement, made me worry that she really didn’t leave the consult with an understanding of the actual procedure associated with either type of divorce, negotiated or litigated. That’s a big deal, mostly because actually understanding the goals is going to be key to reaching the outcome that you’re looking for.
I understand, from her questions, that she’s feeling really afraid. That she wants to do something. That she’s worried about custody, that she’s worried about being at a disadvantage. That she’d feel better, probably, if she could take some affirmative steps to protect herself. While I completely understand and sympathize, I also want divorcing women to exercise some caution – don’t just jump in headfirst without understanding the process or considering the consequences.
To file for divorce – or file for custody – would be a signal to this woman’s soon-to-be ex husband that she intends to litigate, rather than negotiate. Litigation is, without exception, a much more aggressive way to proceed, and, in many cases, can escalate tensions between the parties. It can make having a calm, rational discussion about settlement much more difficult.
While I know that there a situations where we have to be aggressive – like where he won’t pay any temporary support, he won’t disclose assets and liabilities, he refuses to sign a separation agreement, he’s wasting the assets, there’s domestic violence, there’s danger to the children, etc – there are also a lot of cases (maybe it’s even fair to say the majority of cases) where negotiation is a better first bet.
Filing for divorce – or custody – is not what you do, in most cases, before you negotiate. Though you can file on fault and then settle later, and many, many couples do ultimately settle, the actual act of pursuing litigation first can make that road a little longer and more winding than it would otherwise have been.
There’s no hard and fast rules here; each divorce follows its own path. But understanding the path you’re on and making decisions to keep yourself on that path is going to make more sense than going into the situation reactively. If this woman had filed for, say, divorce, or even just custody, rather than trying to stay the course and negotiate a separation agreement, I suspect that she’d have settled eventually – but it would take longer, cost more, and ultimately be much more contentious.
Talk to an attorney. Ask questions. Identify goals. Find a path that helps put you on track to reaching those goals. Follow up if you have questions or don’t understand something, but ultimately stay the course.
We’re here to help! I was so glad I could talk to this woman and help explain the process a little bit more so that she didn’t make big decisions without realizing the repercussions.
If you want to know more about divorce law in Virginia, request a copy of our book or attend our monthly divorce seminar – you’ll be so glad you did!
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