March 16, 2017Author: Demian McGarry
March 16, 2017Author: Demian McGarry
The late and highly respected attorney Betty Thompson, a monumental force in modernizing Virginia family law, was known for telling clients at their initial consultations that “the only won cases are cases resolved out of court.” Having clerked for her during law school, that phrase has stuck with me ever since. Each case is different and there are situations where a trial is unavoidable. However, your attorney should work with you along the way to see if a successful resolution out of court is possible.
So what can you do to ensure that your divorce is as close to successful as possible?
Despite the differences that you have with your spouse regarding the reasons for the breakup of the marriage, the proposed division of assets and debts, support and the custody and visitation of your children, it is important to be civil to each other during the divorce process. Treat your spouse as a business partner, as you are essentially in the business of trying to complete a divorce with him or her. Unnecessary and inflammatory communication and actions will only serve to get you off track towards a successful divorce, and will increase your costs as time and money is spent on extinguishing the flame as opposed to resolving the real issues so that you and your spouse can move on with your lives. Before you hit the send button on your phone or computer, take a step back and think how your message or response will be received not only by your spouse, but perhaps a judge who may read it in the future. A professional and competent attorney can counsel you on ways to handle uncomfortable situations that arise during the separation and divorce period.
If your marriage is short, you have no children, and have little in the way to divide asset and debt wise, a quick and efficient divorce should not be a problem provided you have met the statutory period for a separation in Virginia. But what if your marriage is longer term, and you and your spouse have accumulated assets? What if some of the assets were purchased or funded from sources other than the two of you, such as an inheritance or a premarital account? What if you have children? What if one spouse has spent many years out of the workforce and spousal support is an issue? In these types of cases, the process can take longer, and from the client’s perspective, it can sometimes feel like forever. The best way to divorce when there are more complex issues at stake is to ensure that you are efficient with time and resources from the beginning.
An out-of-court resolution provides certainty because you are in control of the outcome of your case. A retired northern Virginia judge used to say that the clients know 100% of their case, their attorneys will get to know about 50%, and the judge will get to know only about 5 to 10%. The point he was trying to get across is going to trial means the outcome of your case is left in the hands of a stranger who does not truly know you or your family.
Given the time limitations for a trial, the rules of evidence, the limitations on what the law may provide for, things that you think are vitally important may not be given much weight at all by a judge. In addition, judges have discretion in applying the law to the evidence, which leads to unpredictable outcomes. Additionally, out-of-court resolutions allow parties to come up with options and scenarios that a judge would not have the authority to order.
An out-of-court resolution may not give you exactly what you want, but if you can say to yourself: “this is a deal I can live with and gives me security and peace of mind for my future,” then you have achieved a successful Virginia divorce.