Will the court make me….? Issues in Virginia Divorce
I get asked all the time whether the court will make my client or prospective client do something lifestyle-based, like go back to work, put their kids in daycare, quit working, stop breastfeeding, stay in the same city as their ex husband, etc. In general, the answer is pretty clear. There’s not much that the court can MAKE you do when it comes to the decisions about how you live your personal life. Legally, well, let’s be honest: the court kind of exists in order to tell people what to do. But there’s a line between a court telling people to do general things – like divide marital property, pay spousal support, or pay child support – and a court telling people how to take those rulings and then live their lives thereafter.
When it comes to so many of those personal things, the court really can’t make you do one thing or another. The court can’t dictate how you spend your child or spousal support, nor will it allow your husband to do so. The court can’t tell you that you can’t move – though it can place a restriction on whether you’re allowed to move there with your children. The court can’t tell you that you must go back to work or, alternatively, that you must stay at home. The court can’t tell you to breastfeed, to not breastfeed, or to pump exclusively to feed your child, though the custodial arrangement may be within the court’s control.
But let’s discuss a couple of different scenarios, and how they might play out.
Can the court make me….?
1. Live where my child’s father wants me to live.
No. The court can’t control where you go. You’re a legal adult, and you’re free to move wherever you’d like.
That being said, though, that doesn’t mean you can take your kids with you when you go. Custody cases in Virginia are based on the best interests of the child standard, and that means that both parents rights and interests vis-à-vis the children are taken into account. When it comes to custody, your rights and his rights are BOTH involved, so that doesn’t mean you can take the kids wherever you want to go.
If you’re considering a move, you might want to talk to an attorney. If there’s a custody order in place, you’re going to want to be able to follow it after you move without too much fuss. If you’re looking at getting a custody order in place, you don’t want to move so far that the court considers it a relocation. Relocation cases are hard to win, and you’ll want to be prepared if you’re going to try and argue for why you should be able to move with the kids somewhere else. For more information on relocation, get a copy of our free report here.
2. Go back to work. (Or, alternatively, quit working.)
No. The court can’t make you go back to work.
The court CAN award support at a particular level, and that support may make the decision for you.
If the support isn’t enough for you to provide for yourself, you may choose to go back to work. Likewise, if the support is enough that you don’t need to work, you certainly wouldn’t have to work unless you wanted to.
It sometimes happens in these spousal support cases that opposing counsel employs an expert to evaluate your ability to find employment. It may be, under the right circumstances, depending on your age, physical and mental condition, education, training, experience, and so on, that the judge finds that you are capable of earning a certain amount of income. In those types of cases, the judge can impute income to you – meaning, essentially, make you responsible for a certain level of income, regardless of whether you choose to actually go out and earn it. In this way, though a judge can’t make you do anything, he can force your hand a bit.
3. Breastfeed. Or not breastfeed. Or pump.
Breastfeeding is complicated, and different judges feel differently about it. Judges don’t really care, of course, whether you breastfeed or not – but whether the child’s other parent can have parenting time may very well be a concern.
Breastfeeding, especially when we’re talking about an infant, complicates things. It means that the non breastfeeding parent doesn’t have much freedom to do things with the child. Obviously, it’s hard for the child to be too far from you – since you’re the one providing the food.
Some judges are pretty flexible. Some judges shrug their shoulders, and say that if breast milk is so important, why not just pump it? Then dad (or whoever) can feed the baby, too, and the baby isn’t only dependent on you.
Mostly, I find that moms who are breastfeeding are fanatical about it. Hey, I get it – so was I! (I shed more tears over breastfeeding than any other part of new motherhood, I kid you not.) To whatever extent possible, these moms breastfeed. Even if dad gets parenting time without mom, they pump, they travel to where dad is, they make themselves available pretty much wherever, whenever, to nurse. A judge won’t make you do it a particular way, but if he orders something tricky (like, say, overnights with dad), you’re going to have to find a creative way to meet your breastfeeding goals.
Obviously, it helps dramatically to have a partner who supports you in your desire to breastfeed, but we don’t all have that. If your partner (or former partner) isn’t that supportive, you’ll have to work even harder to meet your goals.
Moral of the story? The court can’t force you to make personal life decisions, but it can force your hand a little, and the end result can be you making choices that maaaaybe don’t coincide with your Plan A.
It sucks, and, if you’re disappointed, I’m sorry. I hope you’ll be able to think creatively and come up with some kind of approximation of a plan that makes you feel good and allows you to follow the court’s order. Following court orders, generally speaking, is not exactly optional. (I’m being a bit tongue in cheek here, in case you missed it; following a court order is absolutely mandatory.)
For more information, or if you’re ready to talk to an attorney about next steps in your case, give our office a call at 757-425-5200.