The 6 Things to Tell your Daughter During Divorce
If your daughter is going through a divorce, you’re probably wondering what you should tell her. You can easily provide emotional support, but you probably know that the most important thing you can do for her is actually get informed about the process, so that you can give her advice that helps her case down the road. Whether you’ve been divorced yourself, or have only witnesses the divorces of others, you’re probably very concerned about what all this means for your daughter. But what do you tell her? You’re not a therapist and you’re not a lawyer, and you know that the emotional and legal consequences of divorce are complicated. You also know that divorce law is constantly changing, complex, and state-specific. You wonder how much her divorce will be like others you’ve witnessed, and you hope you can help shield her from the worst of it, all while helping her to put the pieces back together again.
We have moms call on behalf of their daughters all the time, and while we can’t talk to them about their daughter’s particular case (without approval of the daughter, of course), we do offer pieces of advice to worried moms. Here, I’ve collected my 6 best pieces of advice for moms to tell their daughters about divorce.
1. You can’t listen to what he says anymore.
Once a husband and a wife separate, they’re no longer members of the same team. Once you file for divorce, one of you is labeled as the “plaintiff” and the other is labeled as the “defendant.” These terms don’t have the same connotation that they do in criminal law (the defendant, for example, is not the bad guy), so don’t get all caught up in the terminology. The thing to take away from this is that divorce is adversarial. It’s two sides with two completely different sets of interests and priorities, battling it out over things that they both want, like custody, specific items of real and personal property, and support. Husbands seem to grasp this fact almost instantaneously. They start hiding information, gathering evidence, and strategizing right away. They meet with an attorney right away, and come up with a plan for how to move forward.
Then, they tell their wives. Usually, they don’t tell the truth, or, if they do, it’s only a partial truth. They’ll say something like, “You’ll never get my military retirement, because we haven’t been married ten years.” For some reason, whenever something like this happens, it seems like their wives always believe them. I’ll end up with a woman crying in my office, telling me that she knows this thing or that thing about the law because her husband told her it was true, and wondering out loud how she was ever going to make ends meet for herself after this divorce. For more information about the military ten year myth, click here.
I don’t know the husbands. I never know the husbands. So I really don’t know whether what they’re saying is malicious, purposeful lying, or whether they’re as confused by the law as their wives, so they make up whatever sounds good or fair to them. I’d prefer to think that they’re confused or misinformed, rather than malicious, because otherwise I’m just cynical. Still, for whatever reason, this is something that lots of husbands tend to do, and their wives come to me feeling panicked and frantic, and it’s not necessary.
You should tell your daughter, at the beginning, to not listen to her husband anymore. Whatever he says, especially if he has suddenly become an expert on family law, should be disregarded. If you (or she) has specific questions about the law or entitlements under it, you should set a time to meet with an attorney to go over her case in detail.
2. Most divorces are negotiated.
Most of the time, divorce cases don’t play out in court. For some reason, though, a lot of the women that I see tend to think that their case is going to play out in front of a judge. They’re nervous about going to court, worried about what the judge will think, and uncomfortable about the idea of airing their dirty laundry in public. Most of us have watched enough Judge Judy to be really, really, really unhappy at the thought of going to court, especially when what you’re dealing with is something so personal as the end of your marriage and division of everything that came from it.
These days, most divorces are uncontested, no fault divorces. That means that there’s a document called a separation agreement, which is a legal contract dividing all the assets and liabilities in your marriage. It includes absolutely everything, from custody to support and division of all the personal property. It also includes retirement accounts, stocks, bonds, mutual funds, and other investments. It divides real property, like the house you own and the condo you rent. It’s an incredibly comprehensive document, designed to fill in all the gaps so that neither of you is left wondering how something will be handled or divided between the two of you.
Most attorneys really encourage separation agreements, because they’re the easiest and cheapest way to get divorced. Our clients who negotiate agreements tend to experience the most satisfaction in the outcome. Still, a separation agreement is an incredibly important document, and you need to do your research before you draft or sign one.
There are a number of different ways you can negotiate a separation agreement. Whether you hire an attorney, participate in mediation, plan to go through a collaborative divorce, or want to do it yourself (LINK), the end goal is ultimately to create a separation agreement that your husband will sign. There are a lot of options, so you should tell your daughter to research all of the different ways she can get a separation agreement, and find one that suits her situation.
3. Remember: you are NOT single!
In Virginia, you are married until you are divorced. Even though you’ve separated and you’ve started to move on, that does not mean that you’re single. You’re not actually single until you’re not married anymore, and you’re not married anymore once the judge signs your final divorce decree, and not a moment sooner.
The law doesn’t really differentiate between pre and post separation adultery. Adultery happens when a person who is married voluntarily has sex with someone who is not his or her spouse, and, in Virginia, it’s still a misdemeanor. It’s rarely prosecuted, but it’s still technically a crime. Though you may be moving on from your marriage, you should abstain from having sex at least until your final divorce decree is entered.
As far as the court is concerned, there is a difference between pre and post separation adultery. Pre separation adultery is looked at as a major reason for the ultimate breakdown of the marriage. Post separation adultery, on the other hand, isn’t. Because of the way our statute is written, the judge can take a party’s bad acts into account when determining how assets and liabilities will be divided. Usually, adultery doesn’t have a dramatic impact, particularly not if the adultery was post-separation, but it’s way better to be safe than sorry. Protect your interest in everything you’re legally entitled to receive. Wait until you’re divorced to begin a new intimate relationship.
You should also be careful about what types of information you’re sharing on Facebook. It’s tempting to want to let the world (and your ex) you how well you’re doing these days. However, if what you’re sharing could lead a court to believe that you’re not a fit custodian for your children or that you’re engaging in an adulterous relationship, you’ll definitely want to think twice about your status updates. Social media is NOT a safe outlet. Think twice before you share any information about what you’re up to. Better yet, don’t post at all. Or deactivate your account while your case is pending. (But also keep in mind that, if you and your husband have children in common, you should be extremely careful not just until your divorce is finalized, but until your children are no longer minors.) For more information about social media and your divorce, click here…..and here.
4. You won’t lose custody.
Women always seem to be concerned that their child’s father is going to take custody from them. They’ll say things like, “He makes all the money, so of course the court is going to give him custody.” I don’t know where these ideas come from, but they’re definitely not the truth.
Child custody is usually something, like everything else, that is agreed to in the separation agreement. In the rare cases where it is not, it’s decided in court by the judge. But the judge isn’t just going to take the child from a fit parent and place them with the other parent; it just doesn’t happen. If both you and your child’s father are fit parents (and you probably are, even if he’s a jerk), you’re probably going to share custody.
Shared custody is a custodial arrangement where the non-custodial parent (dad in most cases, but the parent who has the child least often) has more than 90 full days of custody over the course of the year. The alternative is primary physical custody, which means that he has less than 90 days. If you daughter is like most moms, she wants primary physical custody. However, if you’re fighting it out in court, that’s unlikely. These days, the courts really view the involvement of both parents as something that is of paramount importance.
The good news is that the court is probably not going to take the child away from mom and give dad primary physical custody, so whatever he is saying now about how likely it is that he’ll be given custody is probably not true. Unless there are extenuating circumstances, if the court is involved, it is incredibly likely that both parents will share custody to some extent. That doesn’t mean that custody has to automatically be a week on/week off, exactly 50/50 kind of schedule, but that’s a possibility.
Good moms don’t just lose custody for no reason. Courts don’t prefer one parent over the other because they earn more money. Shared custody is very quickly becoming the preferred way to handle custody disputes, which means that both parents maintain a role in the child’s life. Unfortunately, it also means a reduction in child support for the custodial parent (the parent who has the child more often).
5. Never sign anything without talking to an attorney.
I spoke with a girl the other day that told me how wonderful her husband was being through the whole divorce. “He’s really looking out for me,” she said, happily. “He said that normally spousal support is looked at like income, so I’d have to pay taxes on it, but he said that he would just add my spousal support payment under the child support heading, because child support isn’t taxable.”
Luckily she hadn’t already signed her agreement, because, if she had, there wouldn’t be much that I could do for her. Remember that signing a legal contract is an extremely serious thing, and it’s not something that you can take back later if you tell the court that you didn’t know what you were signing, were unfamiliar with the laws, or your husband lied to you.
In this case, my gut feeling is that the husband was trying to pull a fast one. Why wouldn’t he claim the spousal support he pays as a deduction on his own taxes? I think there’s a very scary reason. He’s thinking that if he drafts a separation agreement that says that she waived spousal support, but that he was going to pay child support above the guideline figure, it would work for a little while. Then, he would take her back to court, allege a material change (anything involving the children is always modifiable based on a material change), and ask that the child support amount be reduced to the guideline amount. The court would probably run the formula, lower it, and then she would be left with the reduced child support amount, and no spousal support—because, after all, her agreement says she waived it. And that part is not modifiable.
Be sure that you’ve read your agreement, know what it requires of you, and understand any related consequences (like taxes!) that come with it before you sign it. Have it reviewed by an attorney, and possibly even your CPA or other tax professional. Even if you haven’t retained an attorney to represent you in your divorce, you can still talk to one about your agreement before you sign it! Most attorneys will review a document for you and just charge their hourly rate. It’s worth a few hundred dollars to know that you aren’t making a mistake that will cost you thousands, tens of thousands, or more. Absolutely, positively, do not sign an agreement if you’re not sure, because there’s no going back. The only things that are modifiable are child support, custody, and visitation—everything relating to your finances is set in stone.
An attorney will help ask the hard questions that you really need to consider. Considering that your divorce is handling the division of everything you earned or acquired during the marriage, it’s well worth a little investment on your part up front to be sure that you’re really protecting your interests.
If your daughter is going through a divorce, you should provide her with as much emotional support as possible, but knowing a little bit about the law will also go a long way towards helping her strategize to have the best divorce possible—and, most importantly, get the best, freshest, brand new start possible afterwards.