Divorce and custody cases aren’t like personal injury cases. At the end of the day, all you have to divide is what was already there to begin with – so, most of the time, people wind up with less than they had before. I mean, if you think about it, it makes sense. If you sell your house, split the proceeds, and then buy two separate residences, there’s expense there. Two mortgages, two sets of utility bills, and so on.
So, when it comes to thinking about how to handle your divorce, it’s wise to think about it in terms of cost.
In fact, when it comes to most things, its pretty wise to undertake a cost/benefit analysis, but that’s especially true when it comes to divorce and custody. After all, the more you spend on attorney’s fees, the less you have to divide. And attorneys fees can seriously add up, especially in a contested case.
I spend a lot of time talking about separation agreements, and why they’re awesome, and why you want one (LINK), how much they cost, and what to do if he won’t sign one, but what if reaching an agreement really isn’t possible? What if you’ve got certain issues that you and he just don’t see eye to eye on, and you reach an impasse. Then what?
Should I take my husband to court?
It’s a good question. Because, obviously, divorce isn’t a one size fits all kind of thing. Just because separation agreements are good in a lot of cases doesn’t mean that they’re good in all cases. It doesn’t mean it’s even necessarily possible for you.
But should you take your husband to court? Or should you just try a little harder to negotiate? I think that all depends on the specific issues you’re facing, and whether it’s really realistic to expect a court to come down the way you want on a particular issue.
There are many things that are worth fighting, and many things that aren’t. But how do you tell the difference?
What’s worth litigating in court?
The things that are worth litigating are generally the things that translate to dollars. Obviously, you can’t walk away from your marital share of something that has a lot of value, because you have to start your life over post-divorce, and you’ll need money to be able to do that.
If he’s not being flexible about you receiving your marital share of retirement or investment accounts, the house, or some other big money asset, it might be worth going to court.
Spousal support can be worth going to court, too, especially in light of the new tax laws. We run into issues with spousal support all the time, because (let’s be honest) no husband wants to pay it. I think it’s important to have an open, honest discussion with your attorney before you decide to go to court over spousal support, though, because there are a number of factors that affect whether you’ll receive spousal support, and, if so, how much and for how long. We’ll have to look at your need, his ability to pay, the statutory factors, and the duration of your marriage. It often comes down to how much money there is to divide; if he doesn’t make enough, chances are good that you won’t be successful anyway – but a lot of factors impact spousal support, so it’s important to discuss your likelihood of success with your attorney before you make any big decisions.
Custody is often also worth litigating. There’s no actual financial value there, but that’s also part of what makes custody tricky. Obviously, you wouldn’t spend $20k fighting over an IRA with $5,000 in it. It doesn’t make financial sense. But you can’t place a value on custody, and, for many people, custody is a place where fights tend to break out.
What is NOT worth litigating in court?
So many other things are NOT worth litigating. Usually, the nitty gritty specifics – because, well, not to put too fine a point on it, but the judge doesn’t care. And even if he did, he’s not going to write in a bunch of super specific provisions that give either side a reason to gripe, appeal, and risk being overturned.
Judges are not that creative when it comes to how they divide things; they can’t afford to be, truly. It’s not because they’re terrible human beings who aren’t good at their jobs, it’s just not possible to devote that kind of attention to any one particular case. Court dockets are seriously backed up, and judges have to roll through things in order to keep on schedule. They can’t devote too much time to any one thing.
I find that a lot of women are hooked on specific things that their husbands won’t agree to and that judges won’t award. For example? They want provisions regarding college education expenses (judges can’t award that), breastfeeding (generally, judges won’t require that – they’ll probably tell you to just pump), elaborate custody and visitation schedules (those are generally reached by agreement, judges default to a couple variations of a custody and visitation schedule), and so on. The more detail you want, the less likely it is that a judge is the answer to the question you’re asking.
Should I talk to an attorney about my case?
If you’re trying to decide whether or not to litigate on a particular point, it’s a good idea to talk to an attorney about it. Find out what your marital interest in it is, discuss the cost associated, potential outcomes, and a course of action. An attorney can help you decide whether it’s worth your time, money, and blood pressure points, or whether it’s something that would benefit you to just let go. We enjoy litigating things in court, and we’re not afraid to do it, but we also want to make sure that our clients are as well represented as possible – and sometimes that means discussing uncomfortable or unwelcome truths.
Because of limitations of the law, judges only have the power to do certain things. Getting more specific than that is something that you might have to do in a separation agreement, or give up on entirely. It depends on what the issue is, and it’s a good idea to raise those points with a divorce and custody attorney sooner rather than later.
For more information, or to schedule an appointment with our office, give us a call at 757-425-5200.