1. “I heard I can get divorced on one day.” – Not True!
Believe it or not, I had a call come in just this week where a prospective client was under the impression that he could get divorced in as quickly as “one” day. If only it were that simple! The divorce process is not necessarily complicated, but it can take a little time to get it right. In fact, you owe it to yourself to make sure you get it right the first time around. There’s nothing quite like being hauled back into court on a divorce you thought was finalized to resolve issues that should have been addressed the first time around. Ideally, divorcing couples should strive to resolve all of their differences, present their settlement to the court in a written and signed separation agreement, and have that same incorporated by reference into a final decree of divorce. Contrary to what your divorced friends tell you from their own personal experience, having an attorney handle this for you is highly recommended. This is not something you should do on your own.
Regardless of whether you have children, you and your spouse should take the time to work through your differences. Spending tens of thousands on attorney fees is not a prudent course of action for any rationally minded couple contemplating a divorce. Although the operative phrase is “rationally minded,” even where certain concessions are made, it’s often times more likely that you’ll spend less on compromise than you will on attorney fees. Do your best to remove emotion from your negotiating equation and strive to do what you can to find a settlement you can live with now and in years to come. Throw principle out the window and focus on making a prudent business decision.
As far as the timeline is concerned, bear in mind that it is a legal process. It is literally impossible to get a divorce in one day. And although it can happen quickly (sometimes in a matter of only a few days), your best option is to take a little time to make sure you close the door on your marriage, lock it, and throw away the key. With the exception of child custody, visitation, and child support, this is a very real and common option for nearly everyone.
The first step is to work through a separation agreement with a qualified divorce attorney. Do not pick what some affectionately refer to as a threshold attorney (one who takes nearly any type of case that crosses his or her office threshold). Choose someone who specializes in family law, someone whose primary practice area is divorce. Have him or her work through a separation agreement and advise you of the implications of your agreement with your spouse. Make a well-informed decision. Take nothing for granted and make NO assumptions.
After your separation agreement is signed by both you and your spouse, have your attorney file a complaint for divorce. Assuming you’ve been separated from your spouse for the statutorily prescribed period of time, you can literally file the same day your separation agreement is signed. In Virginia, the Clerk of Court for the venue you’ve selected will enter your Complaint for Divorce into its system and issue a case number. From there, your spouse can execute a waiver of service of process and you and your corroborating witness can sign your respective affidavits. Again, ideally, your attorney will draft these documents for you.
[A word of caution: Avoid the do-it-yourself online divorce! If you are buying one of those online divorce paperwork packets and the outfit providing said documents is not filing your divorce and representing you in court, you’re likely wasting your money. Depending on the venue in which you choose to file, you may find it difficult to get these documents approved by the court. Every city/venue has its own unique set of rules that even the most experienced attorneys struggle to master. What worked one time may be rejected the next time based on a new set of eyes with a unique set of expectations. In other words, let the attorney worry about getting it done for you. This is a life event, not an oil change.]
As soon as the waiver and affidavits are received, the attorney can file these documents along with your final decree of divorce for submission, consideration, and entry by the Court. The turnaround time in most cities can range anywhere between 2-6 weeks depending on the court’s caseload (sometimes longer). All you can really do is to remain patient at this stage. You should not need to appear in court and everything will eventually make its way around to a law clerk, judge, and back to the clerk’s office for entry. Once the final decree is entered, the clerk of court will generally email a certified copy to your attorney of record and your divorce will be final.
The beauty of using an attorney through this process is, all you need to do is to answer a couple of questions posed by your attorney and then review and sign documents. Your attorney should do the rest. Our line divorce product (Frugal Legal Services®) makes this possible for hundreds of clients each year for the cost some attorneys charge for an hour consultation. It doesn’t need to be complicated or expensive, but it does need to be done right.
2. “I know we need to be separated for six months/one year. Someone told me we can just back date it.” – Not true!
Your period of separation begins on the date you and your spouse begin living separately and apart without cohabitation and without interruption for a period of either six months or a year (depending on your circumstances). If you have children, that period of time is one full year, regardless of whether you have a separation agreement. If you do not have children and you do have a validly executed separation agreement (hopefully one drafted by a divorce attorney), then your separation period is just six months.
[Here's some good news: Your date of separation is not the day you and your spouse "sign" your separation agreement. You can sign your separation agreement at any time after you begin your period of separation.]
Some prospective clients come into the office and, after learning this information, attempt to persuade me that their date of separation is actually earlier than they originally stated. “Backdating” a separation date is not only unethical, but if presented to the court under oath as fact (knowing it to be a lie), it is also a form of perjury. If you’ve not yet hit the six month or one-year mark, it is recommended that you consider at least completing a separation agreement. You’ll find that time sometimes gives rise to detrimental reflection, allowing emotions to creep into negotiations in ways that prove harmful to resolving issues of support and equitable distribution in a civil manner. If you’re not quite ready to file for divorce, but have figured out how you want your separation to look, have an attorney assist with memorialize get that in writing for you immediately. Save your money and get it done right while you can.
3. “My divorce is uncontested.” – Is it really?
Is it? If your divorce is truly uncontested, you and your spouse are in agreement on every issues that is before the court. There is a difference between “no-fault” and “uncontested.” A no-fault divorce is one where the parties have simply live separately apart without cohabitation and without interruption for a statutorily prescribed period of time. The court has within its discretion (upon the filing of one of the parties) to grant a divorce based on nothing more than a period of separation. Nice, right?
Well, here’s the rub. While you may not be fighting over the “reason” for the divorce itself, you may have certain issues that you want the court to resolve on your behalf. This alone makes your divorce contested. Do either of you want spousal support from the other? Are there children involved and have you ironed out custody, visitation, and child support? What about the home? The cars? Your furniture? Your retirement accounts? You see where I’m going with this? Yes, you may qualify for a “no-fault” divorce, but your divorce may be anything but “uncontested.”
So, if you’re looking for a reasonably priced uncontested divorce, you and your spouse need to work through each and every issue (in writing) before filing any action with the court. That way, you’ll save tens of thousands of dollars often spent on contentious divorces between people who are forced to finance their way to freedom. These same unhappy people often end up in bankruptcy and have done little more than line the pockets of their respective attorneys.
Can you do it? Let’s hope so!
4. “Someone told me we don’t really need a separation agreement.” – True! Well, sort of.
The short response is, a separation agreement is not required. The longer, more accurate answer is that while one is not required, you do “need” one. As I stated above, you can divorce based on no-fault grounds after one full year of separation from your spouse. Of course, proceeding without a separation agreement may leave you vulnerable to having a disinterested third party decide your fate for you. You are putting the power to decide your fate in the hands a judge and you’re paying dearly for it. Odds are, the end result will be something with which you can’t, but must, live.
5. “I can’t afford an attorney.” – True! Who can, really? But you also cannot afford to go without one!
I hear this one nearly every day, but the reality is, you cannot afford “not” to hire an attorney for your divorce. Whether it be a simple uncontested, no-fault online based divorce or a complicated fault-based battle, the last thing you want to do is represent yourself. Not only will you likely be unfamiliar with the laws and procedures involved in a divorce action, you’ll run the risk of being steamrolled by your spouse’s smart decision to retain and utilize counsel of his or her own. At a minimum, you should seek to level the playing field. Make sure you are protected. Make well-informed decisions. Exercise your right to protect yourself, shield your assets, and do what’s best for your children.
Here’s the way I look at it. Even in the worst of cases, no one can really “afford” an attorney. It’s terribly expensive and the fees alone may and likely do exceed your means. Even so, you really cannot afford not to have one though. If it’s getting heated and you’re worried about losing it all, you may have no choice but to find a way to hire competent legal counsel. If, on the other hand, you and your spouse have figured it all out, the cost to finalize your divorce (although still expensive for some) is a lot less expensive than you think. You can literally get divorced from start to finish with a separation agreement and competent legal counsel for less than $400.00! Our online divorce model provides what is the equivalent to a nearly free divorce option for those who know what they want and don’t want to spend a lot of money to get it. There are likely others out there just like it, but ours is tried and true and we get the job done for less.
If you or someone you know is in need of direction, please do not hesitate to reach out for help. Let us help you understand your options so you can make the best decision possible for your personal situation.