10 Truths About Divorce in Virginia

There are few areas of the law which are as polarizing as family law especially when dealing with a contested divorce. Divorce is life altering, no doubt about it, but it does not have to be the cataclysmic event it is often portrayed in the media. To limit the negative consequences of divorce, it is important to keep these ten truths in mind.

1. It takes 2 to tango, but only 1 to divorce.

In Virginia, a spouse is entitled to a divorce after six or twelve months of separation depending on the particular circumstances of the marriage (minor children or not, Separation Agreement or not, etc.). Once the applicable time of separation has passed a divorce is going to occur. Fighting in court to win the love of your estranged spouse is a bad decision and will only lead to further alienation of their affection and your money. Being forced into a divorce when you want to salvage your marriage is traumatic, but denial of this reality will only exacerbates the situation.  

2. There are no winners in divorce.

The emotional and economic effect of ending a marriage through divorce precludes there being a “winner” in any sense of the word. Everybody loses. There may be a “victory” sprinkled throughout the case regarding various legal or procedural issues. For example, you may end up with the T.V. you wanted, the vehicle you worked hard for, the business you started or the support you demanded, but in the calm after the storm, these “victories” will not feel like victories at all. Divorce, at its essence, is a game of mitigation with very few opportunities for lasting victories. Focus on securing your future rather than securing a victory.    

3. Your neighbor’s divorce doesn’t have to be yours.

We have all heard the horror stories. It seems everyone who has gone through a bad divorce wants everyone to know about it. Their horror story does not have to be your story. Ask yourself when you’re listening to them, “Do I want this person to be the source of the advice I am going to use to re-order every aspect of my life?” After hearing the story of their spectacular failure which is often self-inflicted, the answer should be “no.” The best advice anyone can give you is to talk to a professional, at the outset, so you can educate yourself on the realities of your situation and develop a reasonable plan. Also, do not sign any document until you are 100% informed about the law and the reality of your situation because getting out of a signed Marital/Separation Agreement is virtually impossible.    

4. Property: It's either marital, separate or hybrid.

By definition, a contested divorce in Virginia is any divorce action filed without an accompanying Separation Agreement, even if the divorce is a result of a “No Fault” / “Irreconcilable Differences” separation. To help calibrate your demands, desires, and understanding of the possible outcomes in order to avoid a draining divorce trial, you need to understand how a court will likely divide your property. Property is defined in one of three ways: Marital, Separate, or Hybrid. These simple terms are deceptively complicated. Generally, marital property is everything acquired after the date of marriage until the date of separation. Separate property is presumed to be everything owned prior to the marriage, acquired after spouses separate, or given to one spouse during the marriage from an individual other than their spouse (i.e. an inheritance from a parent). Hybrid property is a combination of both (i.e. a house owned by one spouse before the marriage but paid for during the marriage). The focus should be to come up with a fair division of the marital property with an toward accounting for the marital share of hybrid property. Refusing to reach a deal until you get your “fair share” of your spouse’s separate property or refusing to equitably divide marital property will be counter-productive.  

5. Judges cannot make your spouse be sorry.

If your goal is to make your spouse apologize to you or acknowledge he or she is the reason for the divorce, then you need to accept this will never happen. Your goals should be based upon what is the likely result in a courtroom, and a Judge cannot order someone to become a different person. The Judge sees divorce as the dissolution of a partnership, much like a business, with the occasional child custody or support component mixed in. You must focus on making the smart moves in your divorce, not the emotional ones. The emotional toll cannot be ignored but must not overpower your decision making process. Otherwise, you will invariably make emotional decisions which will likely be mistakes. At the end of the day, understand the comfort you seek is found in the realization whatever problems your spouse has are now someone else’s problems to endure.  

6. If you have kids, they know more than you think.

If you do not have children, skip to #7. If you do have children, read this very carefully. They know more than you think and/or want. Kids are amazing. They are resilient. They are a combination, for better or worse, of their parents. They love their parents instinctively, and they always know when something is amiss. They may not know the reasons, implications, impact, or solutions for the divorce, but they know something is different.  They can sense the tension between their parents. They internalize the conflict because they do not know what to do or how to make both of their parents happy. This is not to say there aren’t times to fight for the best interests of the children because a review of my desk has some profound examples of the right time to fight. The point is, do not fool yourself when it comes to the kids because they know more than you want and that should never be forgotten. As parents, you and your estranged spouse should continue to work together for them and accept the other parent is as much a part of their story as you are.   

7. Ones don’t marry tens.

People often marry someone who has similar interests, similar up-bringing, similar life experiences, similar goals, similar beliefs, so it should not come as a surprise they often marry someone with similar short-comings. One of the more difficult paradoxes to get a client to understand is the worst habit/trait about their spouse also is reflective of them. For example, when you want to prove the allegation your spouse has always been a lying thief; know you are also proving you’ve always allowed your spouse to be a lying thief as long as it benefitted you. Obviously, in life there are no absolutes but this is a pretty good rule of thumb and trust Judges know it all too well.

3. There is going to be a future.

It is hard to look past any calamity to the smooth sailing just beyond. This is natural, but do not fall prey to a self-fulfilling prophecy. Negative thoughts and energy will breed more negativity. For the sake of your health and sanity, which will help you make the best decisions, you need to acknowledge the sun will rise in the East tomorrow and this too shall pass. The goal is to achieve the best result in a bad situation with a focus on maintaining a positive return on your investment. Your next chapter depends on it.  

9. Always Be Closing.

If you still want to fight to keep your spouse in the marriage, then you need to re-read #1. If you still want to win, then you need to re-read #2. If you still want to make your spouse apologize for the divorce, then you need to re-read #5. If you understand when it relates to the property that divorce is essentially a business negotiation, then always be closing. Make decisions designed to resolve issues rather than create them. Make calculated concessions to achieve your goals. You will have far more leverage and more possible outcomes outside of the courtroom. You need to work to make the tough, rational decisions to maximize your outcome and your future. If you do not, the Judge will resolve the case in a way that is likely to make everyone unhappy, and it will not be on the terms you would have agreed to.

   10. The majority of cases should settle.

Anyone who has experience in Family Law will be able to identify parameters within which these cases are going to be resolved. This should provide the framework in which a deal can be reached. At the outset of the relationship with clients this framework is identified. It is then up to the client to acknowledge these truths and work accordingly. The cost of litigation can be staggering and a source of great frustration. Add to it the fact the general outcome is typically identified early on as well as the other truths mentioned above, and you can see why the majority of cases should settle. The question always is, whether the parties are able to acknowledge this reality.

Divorce, invariably, will affect every aspect of your life. As in life, though, there is always hope for the future. If you take these ten truths to heart, you will be on the right path to create a better tomorrow and to ensure that when the sun rises you will be ready for the next chapter of your life.

If you would like to discuss your divorce, your options or even help in planning for a potential divorce please give me a call at 757-818-8293.