Probably the question we get the most often, both in our initial consultations and at our Second Saturday seminars is this one: What exactly are my rights?
It’s a vague question, and it isn’t one that has a simple answer, but I’m going to do my best to provide you as good of an answer as I can. I think the question most women are really getting at is “what am I entitled to receive?” or “what will I get in my divorce?” which is a little bit different. Still, I’m going to try to answer all three of those questions, because I think it’ll give you a better idea of what to expect in your divorce (which will, I hope, go a long way towards making you feel better overall).
What ARE my rights?
But, if we’re talking about rights in divorce, you have a couple that jump immediately to my mind.
1. You have a right to get divorced, regardless of whether your spouse wants one, too. Typically, if one spouse doesn’t want the divorce, the case winds up in court because the other party refuses to sign a separation agreement. It’s not the most convenient or inexpensive way to do things, but you can move forward with your divorce without his approval or consent.
2. You have a right to hire an attorney to represent you. You don’t have to, but many women feel that the law is so complex that they would be more comfortable hiring an attorney to represent their interests throughout the divorce process.
3. You have a right to choose to do it yourself, without hiring an attorney. The law allows you to represent yourself in court or negotiate a contract on your own behalf; there is no law that requires you to be represented by an attorney.
4. You also have a right to modify the terms of your divorce by drafting and negotiating a separation agreement with your husband. The law operates a certain way, but you can modify it yourself—simply by signing a separation agreement. (Warning: Before you sign anything, make sure you’re not giving away something valuable that the court would automatically give you! For more information, read on.) You don’t have to go to court and, if the two of you can agree to something that works for both of you, you certainly have a right to do that.
What am I entitled to receive in my divorce?
A different (and also interesting) part of the question about what your rights are in divorce has to do with what you’ll receive when everything you earned or acquired during the marriage is divided. As you are probably already aware, as a person who worked hard to build the relationship and support your husband’s career, part of the assets belong to you. Of course, hand in hand with that is the fact that some of the liabilities (mortgages, car notes, credit card debt, and student loans) belong to you, too. The divorce will handle some of those things, but some of the debt will be divided alongside of the assets—and you may take some away with you when you go.
Obviously, you will only receive a portion of what you had while you were married. You won’t receive something if the two of you together have nothing—it’s just not possible. The things that you have that belong to the two of you as a married couple will be divided. If you have nothing, there’s nothing to divide. If you have a lot, there is more to divide. It should be obvious, but it isn’t always.
Property is categorized in Virginia before it is divided. It can be classified as either separate, marital, or hybrid. Separate property is anything that was earned, purchased, or acquired before the marriage, anything that was given to one party exclusively (by someone other than their spouse), or inherited by one party exclusively, regardless of whether it was given or inherited before or after the date of marriage. Separate property is, as its name implies, the separate property of the spouse who earned, purchased, or acquired it, or was given or inherited it. It was always the separate property of that spouse, so it goes with that spouse when the marriage ends.
Marital property, on the other hand, is anything that was earned, purchased or acquired during the marriage. Probably most of what you own, unless your marriage has been very short in duration, is marital property.
Hybrid property is part marital and part separate. A good example of a hybrid asset is something like a retirement account that was started by one spouse prior to the marriage but was subsequently contributed towards during the marriage. As a result, a certain amount of it (the amount that was in the account prior to the marriage, and whatever has accumulated as a result of the initial pre-marital investment) is separate, and a certain amount is marital (the amount that was contributed during the marriage using marital money.) It sounds complicated, but don’t worry—attorneys divide things like this all the time.
The only things that are divided in a divorce are marital things—and, in the case of a hybrid asset, only the portion that is marital is subject to division. The rest of the things already belong to one spouse or the other.
In divorce, there are certain things you are automatically entitled to receive, and certain things that are negotiating points. The trick is to know more about what the judge would award to you without argument. You should spend your time arguing over the things that can be negotiated (and would be negotiated in front of a judge, if you found yourself in court).
So, what kinds of things can you (probably) expect to receive?
Of course, what really happens in your unique case may be impacted by factors that I don’t know anything about, so keep in mind that I’m only talking about what I generally see happen. What’s true in most cases may be a little bit different from what’s true in your case—and you know better than I do what assets and liabilities you have. To find out for sure about what applies to you in your specific case, you’ll have to talk to an attorney one on one about the facts of your case.
1. Retirement accounts
You’re entitled to roughly half of the retirement your husband earned while you were married (and, of course, half of what you’ve earned is also his). Of course, that applies to most of what you’ve earned but, for some reasons, husbands tend to be a little sneakier when it comes to retirement accounts. I’ve had clients whose husbands have told them that they can’t get any of it, that each party keeps their own, or that they aren’t entitled to receive any of it unless they were married for more than ten years. Whether you’re civilian or military, it doesn’t matter—you have an interest in the retirement he earned while you were married!
You’ll also get half-ish of most of the other things that were earned, acquired or purchased during your marriage—including cars, furniture, real property (like houses and land), and personal property (like cookware, sheets, towels, TVs, computers, and clothing).
2. Child support
If you and your husband have children together, child support will almost always be awarded. Child support is calculated based on a formula that takes into account the income of both parties, whether child support is being paid for the benefit of any other minor children, how much healthcare costs for the kid(s), the work-related daycare expenses and, in the case of a shared custody arrangement, how many days each party has with the child(ren) in a calendar year.
Theoretically, it’s possible that, between your income and expenses, you and your child’s father could even each other out and no one would owe support, but that’s pretty rare. You both share a financial responsibility for the child(ren) born of your marriage, and that’s an obligation that will continue until your children turn 18 or graduate high school. (And, until then, it’s always modifiable, based on any material change in circumstances.)
3. Joint legal custody
If you and your husband have children in common, you’ll probably also share joint legal custody, so it’s good to be prepared for that ahead of time. It’s possible to have sole legal custody, but super unusual. Because legal custody refers ONLY to the right to make 3 kinds of decisions on behalf of the child (about religious upbringing, non emergency medical care, and education), most judges view the right to have a say in these matters as pretty critical in terms of parental responsibility. (It’s physical custody, on the other hand, that deals with where the children will actually live, and which parent they’ll spend the most time with.) Joint legal custody is almost always awarded.
4. Half the (marital) debt
If you and your husband took on a lot of debt during your marriage, it has to go somewhere. (It doesn’t just disappear, you know.) Provided that it was marital debt, it’ll get divided in your divorce.
What types of things are NOT marital debt? Well, if he has taken on a girlfriend, and spent money on credit cards wining and dining her, I think we have a pretty good argument that this is NOT marital debt. If he went out after separation and financed a really expensive boat, we would certainly argue that this was not a marital debt. Of course, just because you don’t agree with a certain expense that your husband has incurred doesn’t mean that it’s not marital debt. It really all depends on the circumstances and timing of the debt but, in most cases, anything that you’ve financed or put on credit cards during your marriage will be divided.
Virginia is an equitable distribution state (as opposed to a community property state), which means that, when a judge makes a decision about how assets and liabilities will be divided, he is supposed to consider what’s equitable, based on the following factors:
1. The contributions, monetary and nonmonetary, of each party to the well-being of the family;
2. The contributions, monetary and nonmonetary, of each party in the acquisition and care and maintenance of such marital property of the parties;
3. The duration of the marriage;
4. The ages and physical and mental condition of the parties;
5. The circumstances and factors which contributed to the dissolution of the marriage, specifically including any ground for divorce under the provisions of subdivisions (1), (3) or (6) of § 20-91 or § 20-95;
6. How and when specific items of such marital property were acquired;
7. The debts and liabilities of each spouse, the basis for such debts and liabilities, and the property which may serve as security for such debts and liabilities;
8. The liquid or nonliquid character of all marital property;
9. The tax consequences to each party;
10. The use or expenditure of marital property by either of the parties for a nonmarital separate purpose or the dissipation of such funds, when such was done in anticipation of divorce or separation or after the last separation of the parties; and
11. Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.
Equitable kind of loosely translates to “fair,” but don’t let that make you think that the judge is going to allow you to go into a lengthy discussion of your husband’s fault. In most cases, even despite the factors and the fact that fairness is supposed to, theoretically, affect the division of property, in most cases property division is still somewhat close to 50/50.
If you and your husband are negotiating an agreement, on the other hand, you’re free to negotiate whatever you’d like, without respect to fairness or the factors.
You have plenty of “rights,” when it comes to your divorce, and it’s important to know what’s negotiable and what’s not. For more information about your specific case, or to get started with your divorce with the help of an experienced, trial-tested Virginia divorce lawyer, give our office a call at (757) 425-5200.