What Kind of Divorce is Right for Me?

Divorce is a process, and it’s different for everyone. Some couples are able to keep things amicable from start to finish, and negotiate a separation agreement quickly, efficiently, and inexpensively. For other couples, though, the process is long, expensive, and drawn out as they oscillate back and forth between pursuing fault grounds and negotiating a separation agreement.

But how do you know what kind of divorce you’ll have? Is it even possible to predict the level of difficulty beforehand? Though it’s not ALWAYS possible to make sure that your divorce will be completely painless, there are definitely things you can do to help ensure that it will be as amicable and stress-free as possible. Are there things that could happen that, through no fault of your own, will drive up the costs of your divorce? Of course. Specifically, if your soon-to-be ex happens to be particularly difficult (and you know the answer to that better than your attorney will at the outset), that can make it difficult to be reasonable.

Probably the best way to keep costs down and make sure your divorce is as quick and efficient as possible is to be careful how you behave in the beginning. Always keep the end in mind, and remember that the choices you make at the outset, when you’re determining your divorce case strategy, really do make a difference in how it will all play out.

What choices will I have to make in the beginning?

You and your attorney will talk in the beginning and start to make some big decisions about how to move forward with your divorce. Based on what you tell your attorney and the priorities you indicate, your attorney will start to craft a custom plan of action for you.

Specifically, you’ll decide what kind of divorce you want to pursue, and how you want to go about pursuing it.

What are the different kinds of divorce?

Basically, in Virginia, there are two kinds of divorce: fault, and no fault.

A fault-based divorce means that you’ll absolutely, positively have to go to court. Why? Well, even if you agree completely on how everything will be divided, you’ll have to offer proof to the court to support the fault grounds you’ve alleged. What are the fault-based grounds? They are adultery, sodomy, buggery, cruelty, apprehension of bodily hurt, abandonment, desertion, and felony conviction.

A no fault divorce, on the other hand, means that you’re not pursuing any fault based grounds. It is important to note, though, that pursuing a no fault divorce does not mean that the fault based grounds don’t exist. If you agree completely on how everything will be divided, your divorce is an uncontested no fault divorce, and you can avoid court entirely. If you do not agree completely on how everything will be divided, your divorce is contested, and you’ll have to litigate those issues on which you cannot agree.

How do I know what’s right for me?

In probably 99% of cases, an uncontested no fault divorce is the best choice. Why? Well, simply put, it’s because you stay out of court. Going to court takes time and costs money, and the court prefers for people to reach settlements on their own. Because of this, there are a number of procedural roadblocks in place before you can even get in the courtroom. In Virginia Beach, for example, it’s not uncommon to have to set a trial date eight or ten months down the road because the docket is so full, and in the meantime you’ll have to issue and answer discovery, schedule a judicial settlement conference, and hold a pre-trial conference. Most other local courts have a very similar procedure. Your attorney will have to prepare for all of these things ahead of time, which takes time and, consequently, costs money.

But won’t I get more if I can prove that he committed a fault?

In reality, probably not. It’s true that the statute is written to allow the judge to award one party more or less of the marital assets as a result of their fault (or lack thereof), but the truth is that this rarely happens. In most cases, fault or no fault, the assets and liabilities will be divided roughly 50/50.

It doesn’t seem fair, I know. But attorneys have little to no control over how the judge takes in information and, ultimately, makes decisions. All we can do is put the evidence out there, and leave it to the judge to determine how the marital assets and liabilities will be divided between the parties.

What does a no fault divorce look like?

As I mentioned before, you can have either a contested or uncontested no fault divorce. A contested no fault divorce won’t put you in a much better position than a fault-based divorce. Why? Because you would still have to go to court to litigate the issues that you couldn’t reach an agreement on. If you have to have a trial, the procedural road blocks (the discovery, the judicial settlement conference, and the pre-trial conference) will still be there.

The best course of action is to pursue an uncontested no fault divorce from the beginning. This assumes that you will make every effort to reach a settlement yourself (with the help of your attorney, of course), rather than letting a judge do it for you.

For obvious reasons, it’s usually best if the parties make decisions themselves on how their assets and liabilities will be divided. That way, each can keep what is most important to them, rather than risk splitting something that they would have preferred to keep whole. That way, both people can identify priorities and work towards coming up with their own solutions for dealing with their problems. This can also reduce friction between the parties, which often paves the way to a healthier relationship post-divorce. If you and your soon-to-be ex have children together, you’ll definitely want to promote a healthy relationship in the future.

These are all things to keep in mind as you plan and execute your divorce. It’s easy to be upset, angry, and frustrated with your spouse at the beginning of the process, but it’s usually best if you can put these feelings aside in an effort to work together towards settlement. Ultimately, you’ll be happier with the outcome of your divorce because you’ll have some control over it (rather than allowing the judge to have all the control), and you’ll make it possible to maintain a healthy relationship post-divorce.

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