You probably feel incredibly guilty, after allowing your parents to foot at least part of the bill (and the average wedding these days is not cheap), and after inviting extended family and friends to watch you and your husband exchange your vows on a sunny Saturday in June, to think that now it could all be over.  After swearing, in front of God and everyone you’ve ever met (and everyone your parents and his parents have ever met), that you and he would love each other forever, things have completely changed.  Whether you’ve known for awhile that things were off, or whether this new phase in life has taken you completely by surprise, it’s definitely an adjustment.

            A lot of the women I see come in with all this guilt.  They don’t want to admit to family and friends that they couldn’t make it work, but they just don’t see a future doing what they’re doing now.  It’s hard to give up on something you dreamed of for so long, especially if you have children.  As women, we feel such a strong sense of obligation towards everyone else that it’s difficult to make the decisions we know we have to make for our own well-being.

            If you and your husband are past the point of marriage counselors, you’ll want to start gathering facts about divorce in your home state.  Divorce is incredibly state-specific, and you’ll need to get an idea about how the law works in your area so that you know what to expect when you meet with your attorney.  All too often, I hear women tell me that they’re so panicked about something completely terrible that happened to a friend of a friend who got divorced in another state in a completely different decade.  Once they latch onto that fear, it’s so hard to get them to a place where they feel secure and confident in anything.  On the other end of the spectrum is the woman who hears about a friend of a friend who ended up with the best settlement ever, and she thinks that no matter what she does, she’ll end up with something pretty close to exactly the same as the other woman.

            It’s a good idea to get good, solid, reliable information from a reputable source.  A friend of a friend is probably NOT a reputable source.  For a step in the right direction, request a copy of one of our free books: What Every Virginia Woman Should Know About Divorce, The Woman’s Custody Survival Guide, and What Every Virginia Military Wife Should Know About Divorce.  Good luck!

            In custody cases, you often have to ask yourself whether there really is a custody fight brewing, or whether you’re just stirring the pot.  I’m always surprised at the number of women who are gearing up to make a pre-emptive strike against their child’s father when there’s actually no custody fight already in existence.  Chances are, if your child has already been born and he’s not constantly fighting you for more time, you’re probably stirring the pot by filing a petition for custody. 

            Just because you and your child’s father aren’t married doesn’t mean that a custody and visitation arrangement generated by the court is an absolute must-have.  If you’re able to get along and work out custody and visitation to the satisfaction of both parents, it is entirely possible to never go to court over it at all. 

            If, on the other hand, you’re having trouble negotiating a workable custody and visitation arrangement, or he’s taking the child and threatening not to bring him back, it may be advantageous to file for custody.

            Don’t fall into the trap of thinking that you have to have something official on paper.  If you and your child’s father are getting along and handling your responsibilities together, it’s okay to just let things be.  If he’s not involved but he’s paying child support, you don’t need to ask the court to make it official—you’ve already got custody, and you’re exercising it.  You have to ask yourself what the benefit of legal action is, and what you stand to gain (or lose) by it.  If you already have custody and you’d prefer that nothing about your arrangement change other than that you have a piece of paper saying that you have custody, it’s not worth the risk that you’ll make him want to fight back. 

            Don’t create a fight where none exists.  File for custody and visitation if you find yourself in a position that you don’t know what else you can possibly do to facilitate things between you the two of you.  Until then, sit tight, and hope for the best.

            Legally, it can be incredibly difficult to win a relocation case.  Why?  Well, the courts are looking at the best interests of the child and, from their perspective, it is difficult to see why removing the child from one of the parents would be in the child’s best interests.  Sure, there may be increased opportunities for mom if she moves back home, but the court isn’t really all that concerned with what is her best interest.  The child’s relationship with other family members, including grandparents, aunts and uncles, is also considered, but the court probably won’t weigh these relationships as being more important than the child’s relationship with his or her father.

            The court will never restrict YOUR ability to move, but the court can restrict your ability to move with the child.  The court will listen to your argument for relocation, but in general these are difficult cases to win.

            If your child’s father is in the military, you will only be tied to the area for so long as he is stationed there.  Certainly, if his orders change and he moves somewhere else, you will then be free to move as well.  Otherwise, you may be stuck—at least for awhile.

            Relocation cases are often the most successful when the parties reach an agreement on the issue, and specifically handle how custody and visitation will be divided afterwards.  You should remember that relocation will significantly impact custody and visitation.  In most cases where mom and dad don’t live near each other, I see significant chunks of time given to the non-custodial parent—sometimes as much as six to ten weeks in the summer, and many of the school and religious holidays.  Why?  Well, since it’s not really possible to do the default every other weekend, Wednesday night dinner, two weeks in the summer arrangement, dad still deserves time with the child.  If that time can’t be frequent and short in duration, then it has to be less frequent for longer periods of time. 

            Relocation is never a guarantee, and you should be prepared for that ahead of time.  The court isn’t concerned with what’s in your best interests, either, so an argument that is basically that “my job will be better if I move, and me having more money benefits my child,” is not going to be sufficient.  And probably the WORST thing you could say is that you want to move to be close to your new boyfriend or fiancée.  Be careful, be aware that the judge is likely to look very critically at your request to relocate, and remember to focus your argument on why your relocation is in your child’s best interests—not yours.

            You want to make sure you have a good attorney on your side, but you can’t afford to run all over town having consultations with every attorney who practices family law.  So your first step is probably to do some research on the Internet, and you limit your search down to a couple of promising candidates.

            When you meet with an attorney, you should feel that the attorney is listening attentively to you, and that your case is important.  Whether or not your case presents a particularly novel issue of law or fact, you should feel like the attorney is listening and wants to help meet your goals.  Listen to the options the attorney gives you, carefully consider his or her recommendations for you, and form your own opinion.  Ask questions.

            It’s important that you select an attorney with whom you feel comfortable.  Especially in family law, clients often have to admit uncomfortable or unpleasant things to their attorneys, and you should pick someone with whom you know you can be honest.

            You should also be comfortable with the fees the attorney is charging.  There are a lot of factors that affect what an attorney charges, and it definitely varies a lot from attorney to attorney.  Your attorney should explain to you what his or her hourly rate is, what kinds of things they bill for, how they utilize staff to cut down on costs, and what other administrative fees there are. 

            You should ask whether your attorney is billing a flat fee or on a retainer.  In a flat fee system (which is pretty rare), the attorney charges one, up front fee, and there are no additional charges.  You pay that amount, and that amount takes care of the specific process for which you retain the attorney.  For example, if you retain an attorney to negotiate your separation agreement on a flat fee basis, you pay that one number and you won’t pay more.  At our firm, Kristen Hofheimer bills on a flat fee basis.

            A retainer is more popular than a flat fee.  In a retainer system, you pay a certain amount that goes into a trust account with your name on it.  As your attorney does work, he or she bills against the retainer.  The money is yours until it is spent and, once it is spent, your attorney will ask you to replenish your account.  The attorney will bill for work done on your case, including phone calls, emails, and letters, as well as court appearances and document drafting.  All of the other attorneys in our firm bill on retainers.

            A big part of choosing an attorney is listening to your gut.  Do you feel that this attorney listens to you, cares about your case, and will do his or her best to zealously represent you?  If so, you’re definitely on the right track.

            An initial consultation is the time that you and your attorney will use to identify goals and specific methods designed to help you achieve those goals.   If you come in and tell your attorney that you want to move forward with a contested divorce because you want your day in court, your attorney will have very little choice but to take you at your word and set a series of events in motion that, once started, may be hard to take back.

            In most cases, the best course of action is to start drafting a separation agreement.  It causes the least stress on the parties and can save tens of thousands of dollars versus litigating a divorce in court. 

            Once you file for divorce, serve your complaint on your husband (in which you enumerate all of the skeezy things he has done to make you want this divorce) and set a pendente lite (temporary support) hearing where you plan to ask for temporary spousal and child support, temporary custody, and exclusion possession of the home, you’re gearing up for a fight.  After that point, it’s a lot harder to come back down and negotiate reasonably.  Now, you’ve gotten his back up, and he’s not going to be nearly so willing to compromise and have open, honest discussions with you.

            Before you go too far down the road and make hasty decisions, get the right information first.  Request a free copy of one of our books What Every Virginia Woman Should Know About Divorce, What Every Virginia Military Wife Should Know About Divorce, and the Woman’s Custody Survival Guide to get started.  We also offer low-cost seminars about divorce, where you’ll have an opportunity to ask your questions live to one of our licensed, experienced, divorce and custody attorneys.  If custody is at issue, check out our popular new seminar Custody Bootcamp for Moms.  It’s an all day event designed to help prepare you to litigate your own custody case, and can be really helpful whether or not you’ve already hired an attorney.

            Get the facts.  It can only help your decision-making, and improve the divorce process for you, your husband, and your children.

            Spousal support is based on a number of factors, including the income of both parties.  You have to demonstrate that the receiving party has a “need” (that is easily done), and you also have to demonstrate that the paying party has an “ability to pay.”  This is determined based on relative income disparity.  There has to be a big enough difference between what you’re making and what your husband is making for you to qualify for spousal support.  If you make more money, or if your incomes are relatively close to the same, you won’t receive spousal support.  If, however, there is a significant difference between what you make and what your husband makes, read on.

            After determining whether there is a need and an ability to pay, the court will look to the Virginia statute governing spousal support.  Read the full statute here.  There are thirteen factors:

The obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature;

The standard of living established during the marriage;

The duration of the marriage;

The age and physical and mental condition of the parties and any special circumstances of the family;

The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home;

The contributions, monetary and nonmonetary, of each party to the well-being of the family;

The property interests of the parties, both real and personal, tangible and intangible;

The provisions made with regard to marital property under 20.107.3;

The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;

The opportunity for, ability of and the time and costs involved for a party to acquire the appropriate education, training, and employment to obtain the skills needed to enhance his or her earning ability;

The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time one or both of the parties have been absent from the job market;

The extent to which either party has contributed to the attainment of education, training, career position, or profession of the other party; and

Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.

            Now that you’ve read the factors, do you think you can make a good argument for why you deserve to receive spousal support?  I hope so!

            Even if you qualify to receive support, we’ll have to consider how much you’ll receive, and for how long.  The amount is relatively easily determined because there’s a formula.  (Remember that it is absolutely NOT mandatory for the court to use this formula, but it will give you a good baseline idea of how much you might expect to receive.)  The formula is 28% of the higher earning spouse’s income minus 58% of the lower earning spouse’s income. 

            As for how long you’ll receive support, you will also have to consider the length of your marriage.  Depending on whether your marriage was short, mid-length, or long will affect the duration of your spousal support award.  To help you figure it out, I’ll provide you a general guideline for determining the length of spousal support (please note that this is NOT law, but a guideline that attorneys and judges sometimes use to determine duration of support): if you’ve been married 1-5 years, you won’t qualify to receive support; if you’ve been married 6-18 years, you qualify to receive support for half the length of the marriage; if you were married 20 years or more, you qualify to receive permanent spousal support.  Permanent spousal support is defined as support that you receive until one of three events occurs: (1) either of you dies, (2) you remarry, or (3) you cohabitate (live together like you’re married) with another person in a relationship analogous to marriage for a period of one year or more. 

           In order to prove that you deserve to receive spousal support, you’ll have to satisfy all these requirements: (1) you have a need, (2) he has an ability to pay, (3) the statute warrants an award of spousal support, and (4) your length of marriage justifies an award of support.  Good luck!

            Equitable distribution means that property will be divided “fairly” between the parties.  In most cases, this means that marital property (that is, property earned or purchased by the parties during the course of the marriage) will often be divided close to 50/50.  That doesn’t mean that 50/50 is the default, or that 50/50 always happens.  In fact, equitable distribution means that the court can look at the contributions of the parties (both monetary and nonmonetary), and can award something completely different than 50/50. 

            This law means that the judge can look at everything—from whether one of you committed adultery, to how much money you each made during the marriage, and how many carpools you drove to swim practice.  Everything has a negative or positive monetary or nonmonetary value, and the judge can use that value to make an award that is “equitable,” or that is not 50/50.  Don’t get too excited, though; in almost every case I’ve ever seen, the award is very, very close to 50/50, even in cases where there has been adultery (a pretty seriously bad negative nonmonetary contribution). 

            Remember, though, that there is always a difference between how a court would divide things, and how you and your husband might agree to divide things in your separation agreement.  In most cases, I see property divided pretty close to 50/50.  Sometimes, if you catch him while he’s feeling guilty after an affair, you can get him to agree to something that gives you slightly more than 50/50.  Or, at the very least, you can negotiate property division in a way that serves your interests.  

            As far as this divorce law goes, the good news is that it gives you a lot of flexibility.  In exceptional circumstances, judges CAN deviate from 50/50, which can be advantageous.  If nothing else, you know that you can use the law to negotiate an agreement that takes your goals and your plans for your future into account. 

Grounds for Divorce

These days, even if you don’t have fault-based grounds, you can still file for divorce.  In Virginia, we don’t have irreconcilable differences; we have what’s called “no fault” divorce.  You don’t need a reason to get divorced under these grounds, you just have to be separated for the statutory period (one year if you have minor children, and six months if you don’t). 

We have fault-based grounds as well, including adultery, sodomy, buggery, desertion, abandonment, cruelty, and apprehension of bodily hurt. 

Contested v. Uncontested

Depending on whether the issues in your divorce have already been handled, or whether the court will need to handle things like equitable distribution, custody, and support, your divorce will be further classified as either contested or uncontested.  In a contested divorce, the court will make the ultimate decision with respect to one or all of the issues; in an uncontested divorce, on the other hand, the parties themselves agree about how all of the rights, responsibilities, and liabilities arising from their marriage will be divided.

You can have a no fault divorce that is either contested or uncontested, but a fault-based divorce is always going to be contested.  In order to get divorced based on fault-based grounds, you’ll have to actually prove the fault to the court.  Your husband can’t “agree” to get a divorce based on adultery; you’ll have to actually show enough evidence for the court to formally find that he committed adultery.

What’s best for me?

In almost every case, a no fault uncontested divorce will be the quickest, easiest, cheapest option.  The alternative is litigation, so you can expect that this will cost more.  And the problem is not only that it costs more, it’s that it doesn’t yield different results.  Remember that, in a marriage, you can only divide what’s there, so you’ll automatically have less than you did before the divorce.  Making good decisions early on in the process can save you a lot of expense and headache later on.

Divorce law is extremely state specific.  Each state has its own laws about how marital property is divided, how custody is handled, and what amount of support is appropriate under the circumstances, so it’s a good idea to know what the divorce laws in Virginia say before you get started.

How Property is Divided in Virginia

We use a system called “equitable distribution.”  Under this system, the judge can take the negative and positive monetary and nonmonetary contributions of each party into consideration when determining how property will be divided.  Translation: If either of you have done something really, really good for the marriage (or, on the other hand, really, really bad), you could be rewarded (or penalized) for this behavior.  Monetary contributions refer to what you’ve done professionally, and nonmonetary contributions deal with the things that you’ve contributed to the marriage without being paid (for example, helping the kids with homework, making dinners, upkeep of the marital home, etc).  Whether you’ve stayed at home or worked 70 hours a week, your contributions will count.

Child Custody

Child custody in Virginia is determined based on the Best Interest of the Child factors, which can be found in the Virginia Code.   The Virginia code also provides for two different kinds of custody: physical, and legal.  Legal custody refers to the right to make three kinds of decisions on behalf of the child: non-emergency medical care, educational, and religious upbringing.  Usually, legal custody is held jointly.  Physical custody, on the other hand, refers to where the child spends most of his or her time.  Physical custody can be primary, shared, or split.  In a primary physical custody situation, the non-custodial parent has less than ninety days with the child in the course of a year.  In a shared physical custody situation, the non-custodial parent has more than ninety days with the child in a year.  (This affects the amount of child support!)  And, in a split custody situation, one parent takes one child and the other parent takes another.  This isn’t preferred by judges, but it happens sometimes by agreement of the parties.

Support

Child and spousal support are also determined by law.  Child support is established by a very specific formula.

The amount and duration of spousal support is determined by an analysis of the factors.

As you can tell, divorce laws in Virginia mandate that certain things happen in a divorce.  Before you go too far, you should make sure that you know what you’re entitled to under the law.

            Obviously, you’d want to live in separate bedrooms, but that’s really only part of what the court is looking at when determining whether you have lived sufficiently separately to satisfy the statute.  Mostly, the court is trying to determine whether you have been cohabitating. 

            You are cohabitating when you live together as husband and wife.  It’s about how you behave in public AND how you behave privately.  In public, you shouldn’t be playing the happy couple for the sake of your friends.  Even though it feels like it’s probably easier, you’ll have to air your dirty laundry to a certain extent.  You should explain to friends and family that you’re still married but separated, and that means that you really can’t attend functions together the way you would have before.  You can both go to your daughter’s soccer game, for example, but you should ride and sit separately.

            Privately, you should live the way you would if you actually lived in separate spaces.  You should do your own grocery shopping, cooking, cleaning, and laundry.  If possible, you should use your own computers and live in different parts of the home.  Remember that each of these things is only a part of a greater puzzle.  Just because you washed a sinkful of his dishes once doesn’t mean that this will completely defeat your argument that you lived separate and apart for the year, though you definitely shouldn’t make a habit of it.

            The judge will ask you and your witness whether you lived separately during your year, so you’ll want to make sure that you can clearly and firmly tell him yes.   

            If you don’t actually want the divorce, it may be hard to take the initiative to retain an attorney.  I’ve heard many women say, “If he wants the divorce so badly, let him pay for it.”  While it’s true that he can retain an attorney to draw up a separation agreement, you can sign it and he can move forward with the divorce without you ever having to pay a dime in legal fees, this probably isn’t the best route to go.

            An attorney is hired to represent the interests of one person, and one person only.  If your husband hires that attorney, it is not the attorney’s job to worry about you, your children, or any other obligations that you may have now or after the final divorce decree is entered.  It is the attorney’s job to draft the best agreement for your husband that he can, and hope that you sign.  The more things you end up giving up and his client ends up getting, the better he has done.

            If you choose not to hire your own attorney, you should definitely beware the agreement that your husband’s attorney presents you with.  You can be sure that this agreement is not representative of what your best interests are.  If you really don’t want to hire an attorney, it can still be a good idea to pay an attorney for an hour or two to review the agreement, advise you briefly of your rights, and give you a few pointers for how to negotiate with your husband’s attorney.  Remember that a separation agreement is usually achieved after a whole lot of haggling, and you definitely don’t want to accept the first offer.

            You’re sad about the breakdown of your marriage now, but that doesn’t mean that you should make the whole situation sadder by making it harder on yourself later. 

            In order to get an uncontested, no fault divorce, you and your husband will have to enter into a separation agreement.  A separation agreement (sometimes referred to as a property settlement agreement, or a marital and separation agreement) is a legal contract in which the two of you divide up the rights, responsibilities, and liabilities resulting from the marriage.  You’ll deal with everything from how to handle the marital residence, creating a custody arrangement for your children, dividing up credit card debt, and figuring out who gets what portion of the retirement account(s).  It’s a pretty serious document, but you can create one in a number of different ways.

            With a Lawyer

            You can hire an attorney to draw up a separation agreement for you.  It’s a relatively simple process.  You sign a retainer agreement, your attorney drafts a document for you, and you send it to your husband (who may or may not have an attorney) to negotiate a final draft.  Usually, this process takes a few months but, depending on your husband, may take longer if he’s unwilling to negotiate.  This is by far the cheapest way to involve an attorney, and you can be sure that your agreement gives you what you are entitled to receive under the law.  It is your attorney’s job to represent you well and get you as much as possible.

            With a Mediator

            A mediator can also work with you to negotiate a separation agreement.  You should, however, be very careful.  A mediator may be an attorney, but probably isn’t.  You should make sure to ask before you get too far in the process.  Regardless, though, it is not the mediator’s job to represent you, or to make sure you get a fair deal in the process.  The mediator is there to help you reach an agreement.  Whether that agreement is good for you or not is a totally different story.

            I recommend that, if you decide to use a mediator, you should meet with an attorney for an hour before and after your appointment with the mediator.  Beforehand, you should go over with the attorney what you can expect to receive and have a range where you’re comfortable.  Afterwards, you should meet with the attorney before you sign to make sure that you understand what you’re agreeing to—because there’s no going back later.

            Using an Online Source

            There are also lots of online sources that claim to help you draft a separation agreement.  In many cases, they will provide you with a form document so that you can pretty much just fill in the blanks.  If you know what you’re doing, this could certainly be a good option—but, of course, you’d have to be pretty sure that you were comfortable in your knowledge of the law and your entitlements under it.  You’d also have to be relatively certain that your husband would agree; online sources don’t provide any troubleshooting in the event that your husband is more difficult than you anticipated.

            Remember that the goal here is not just to get divorced, but to provide yourself with a blueprint for a fresh start.  In order to guarantee yourself the best, freshest start possible, you’ll need to make sure that your agreement gives you all the things you deserve under the law.  You can cut corners in some cases, but you’ll have to ask yourself whether it’s truly worth it.  Do you want to trust that the mediator will write a good agreement for you?  Do you think you can do it yourself?  Maybe so, but you’ll want to go in armed with as much information as possible. 

            “Do I have to make him see his dad if he doesn’t want to?” is a question I get all the time.  The answer is (as always) it depends.

            It depends on a lot of factors.  If there is a history of abuse and you have a reason to be afraid for your child’s safety, it is reasonable to withhold visitation.  Similarly, if your child’s father’s behavior has been erratic and unpredictable, you’re probably justified in rescheduling visitation.

            Sometimes, courts do allow children a say in visitation.  Usually, this doesn’t happen until the child is at least fourteen years of age and, even then, it’s a rare occurrence.  Generally speaking, the courts don’t like to involve children in custody disputes. 

            If you have an agreement or a court order regarding custody, it is probably in your best interests to follow it, even though your child may not want to visit with dad.  For one thing, it is not the children that the court obligates to follow its orders—it is you.  Your child’s failure to comply can result with you being held in contempt.  The court DOES see it as your job to facilitate visitation between the kids and dad.  That can be difficult, particularly when your child doesn’t want to go and, frankly, you understand why the child would be angry and upset. 

            It’s important to remember that a minor child is still a child, and is not a fit person to make mature, rational adult decisions.  A fifteen, sixteen, or seventeen year old really isn’t fit to make decisions as important and life-altering as whether to have a relationship with his father.  Sometimes, it’s necessary to force children to do things for their own good later on down the road.

            Ultimately, the decision whether to follow or disregard your custody order is your own.  You should look carefully at the situation and the circumstances that have caused your child to refuse to go, and make the best decision you can.  Is your child refusing because he thinks it will hurt your feelings if he goes?  Is your child mad at his dad because of something you’ve said?  It can be hard to send your child to visit when every word he utters is proof of what you’ve been saying all along.  It’s normal to feel vindicated by your child’s feelings, and it’s normal to want to shield your children from the pain that your child’s father has caused you.  There are a million other reasons you might resist sending the child, but ultimately you have to ask yourself whether not having a relationship with dad is really in your child’s best interests, and whether it’s worth going back to court on a show cause and, ultimately, risking being held in contempt of court.

            If you’re expecting to ask for support from your husband or you’re afraid that he’s going to ask for support from you, your wheels are probably turning.  How can you maximize the support you get from him, and minimize the support he can ask for from you?  Obviously, if the calculation is based on income, you’re thinking of ways to change your income.

            Should you quit your job?  Or, if you were considering getting one, should you wait a little longer?  After all, you’ll pay less in support if you don’t make money, right?  And you’ll get more in spousal support if you don’t make anything, wouldn’t you?

            Well, it’s not really quite that easy, especially if the court is involved.

            If you’re considering quitting your job

            It’s not a good idea to quit your job to avoid paying support.  Your husband can’t do it, and you can’t do it.  Why?  Well, the court can impute income to you, even if you’re not making that income now.  If your husband’s attorney proves that you quit your job (versus being fired) in order to avoid paying support, the judge has the authority to order you to pay support like you were still being paid for doing that old job. 

            That goes for your husband, too.  If you’re afraid he’s going to quit his job to avoid paying you support, think again.  That’s an old trick.  So old, in fact, that the court has developed an answer to it.  He can’t shirk his responsibilities to you by just quitting his job.

            If you’re waiting to go back to work

            I’m always surprised at how many women want to avoid going back to work just so that their husbands will be ordered to pay more support for a longer time.  Though this may work in some cases, it can also seriously backfire.  There was a recent Virginia Court of Appeals case that came down where a wife refused to go back to work.  Not only did the judge seriously cut her award of support, but he also gave it to her for a MUCH shorter period of time than she would otherwise have received it.  Yikes!  

            The bottom line is that it’s a good idea to live your life the way you’d live it if you didn’t have spousal support to worry about.  Make the best choices you can for yourself, for your children (because, after all, any extra income you make on your own, or fail to make for yourself, affects them too!), and for your future.  Let your spousal support award be whatever it is, but don’t do anything yourself that will jeopardize that award.

In Virginia, you don't have to file for separation.  You are separated when at least one of you forms the intent to leave the marriage and remain permanently separated from that point on.  "Separation" doesn't necessarily mean physical separation, but it does mean that you must stop cohabitating, or living together as husband and wife.  In many cases, you can prove to the judge that you've been separated, even if you and your husband choose to live in the same home.  It is important that you make a commitment, at the time that you separate, to actually live separately.  If you're wondering whether you can do something, ask yourself, "would I be doing that for him or with him if I lived in my own place?"  If you wouldn't, then it's probably a good idea to avoid doing it once you're separated.  

Remember that just because you're separated doesn't mean you are any less married.  In Virginia, you're married until you're divorced.  If you have minor children, you must be separated for a year before you can get divorced (or six months with no minor children).  Separated is the same as married, at least for the purposes of adultery.  In Virginia, adultery is a misdemeanor offense.  It is unlikely that you would be prosecuted for committing adultery, but it could affect other entitlements you might otherwise have--so be very careful!

If you've committed adultery, you'll be barred from asking for spousal support unless you can prove that some sort of "manifest injustice" would occur.  (Trust me, this is a hard thing to prove.)  Likewise, if your husband has committed adultery, he will be barred from asking you for spousal support. Of course, I am assuming that all the other factors support an award of spousal support, because it is not always guaranteed.  

It's definitely important to know how your particular state operates before you get too far into your planning.  The choices you make now can affect your entitlements later, so it definitely pays to be informed.  If you live in Virginia, request a free copy of one of our books, "What Every Virginia Woman Should Know About Divorce," What Every Virginia Military Wife Should Know About Divorce," or "The Woman's Custody Survival Guide," to get started!  See the links below.

Fault and no fault deals with the grounds for your divorce.  Contested and uncontested refer to whether you and your husband have settled the rights, obligations and responsibilities arising out of your marriage before you get in front of the judge.  If you file for a fault based divorce, it is always contested.  You may choose to litigate over only a few issues, but no one signs a separation agreement that allows them to get a divorce based on fault (like, for example, adultery)--that is something that must be proven in court to be awarded.

If you have a no-fault divorce, it can be contested or uncontested.  You can agree to file on no-fault grounds, even if there are fault grounds.  If there aren't fault grounds, you can still get divorced, but you'll be limited to a no fault.  If you're having a no-fault (but contested) divorce, you'll still go to court and make arguments in front of the judge for how your marital assets and liabilities should be divided and ultimately the judge will issue a ruling.  That ruling will be the final order of the court, and will govern how everything in your divorce (except for any of the issues that you maybe have agreed on together) will be settled.

In an uncontested no fault divorce, by the time you finally get in front of the judge, all of the important issues in your divorce will have been handled.  Since you agreed on both your grounds and the disposition of your marital property, all the judge does is review your final decree of divorce and sign it at the bottom.

Though it is not my intention to be scientific here, it is probably safe to say that close to 95% of divorces are ultimately uncontested, no fault divorces.  Why?  Well, in most cases, the parties prefer to settle things among themselves rather than risk having a judge do it for them.  After all, the judge doesn't know either of you or very much about your case, and it's definitely a gamble to lay it all on the line in front of him and hope you like what he says.  It also tends to cost a lot less to agree than to fight to the death.  Before you actually get to trial, your attorney will have to do a lot of preparation--and time costs money.  If you don't want to see bills filled with time spent at judicial settlement conferences and drafting proffers, it's probably in your best interest to reach an agreement sooner rather than later.

            If you’re filing for divorce, one of the best ways to get him out of the marital home is by having a pendente lite hearing.  “Pendente lite” is Latin for while the litigation is pending, and it is essentially a hearing that determines how temporary support will be awarded.  The court can decide things like child support and spousal support, and it can also award one party or the other exclusive possession of the home.

            Of course, an award of exclusive possession doesn’t mean that you have a greater ownership interest in the home.  It just means that, at least while the litigation is pending, only one of you has a legal right to be physically present there. 

            The marital home will be one of the things that is divided between you at your trial or in your separation agreement.  If the issue of exclusive possession of the home isn’t addressed at the pendente lite hearing, it will be addressed here.  Either the two of you agree that one will buy out the other’s interest (and leave the property by a certain date), or you agree to sell the home and split the proceeds.  If you can’t agree, the court will likely order that the house be sold and the proceeds split. 

            Simply put, you can’t act like you’ve got exclusive possession of the home until you and your husband agree to it, or until you have an order of the court officially granting it to you.  Until that time, you can’t change the locks and prevent him from getting in to the home.

            The same thing goes for you, if you are insured through your husband’s employer.  Because of the way health insurance companies work, he can’t keep you on his insurance after the final decree of divorce is entered.  At that point, you are no longer his wife.  In fact, legally, you become a stranger to your ex-husband.  The health insurance company has no obligation to extend coverage to strangers. 

            The children, on the other hand, can stay on whichever parent’s policy they were on before the divorce.  The child support formula takes the cost of health insurance into account, and whichever parent is responsible for paying the premium will receive credit for it in the child support calculation.  It’s not really a dollar-for-dollar thing (for example, if you pay $50 a month in health insurance, it doesn’t mean that he’ll have to pay exactly $50 more in child support), but the formula does take this expense into account. 

            Many women end up without health insurance after a divorce because it’s just to expensive to get a policy independent of an employer.  If it’s a long-term marriage and you qualify to receive spousal support, your attorney MAY be able to negotiate a higher award of spousal support for you because of the cost of health insurance that you’ll have to pay out of pocket.  Sometimes this argument is successful and sometimes it isn’t, but it’s often worth a try.  If your marriage is a shorter-term marriage, it is unlikely that your husband will have to pay much more or for a longer period than he would ordinarily be required to pay.  Of course, you should keep in mind here that I am assuming that yours is a situation that would qualify for spousal support, which is also not always the case. 

            If your husband is in the military, you can’t qualify to receive military benefits after divorce unless you’re a 20-20-20 spouse, which means that you have been married twenty years, that he has twenty years of creditable service, and those twenty years overlapped.  If you’re a 20-20-15 spouse, which means that just fifteen of those years overlapped, you can receive health insurance through TriCare for a year after your final divorce decree.