As always, before reading this post, please review my disclaimer by clicking the link above, or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Update: Some of the information contained in this blog post is outdated due to changes in the law. Please review the 2018 and 2020 Relevant Changes in the Law post for details.
Introduction
I can say over and over again that family law in general, and divorce law in particular, is too complicated for most people to go it alone. That you really should have an attorney to represent you in the divorce process. That the cost of an attorney is generally worth it, even in "simple" cases. Yet, time and again, we have clients walk in our doors who represented themselves for some or all of their divorces, and now want us to clean up the messes they made.
With that in mind, knowing that at least some of you still won't hire an attorney and will try to do it yourself, in today's blog post I will discuss five of the biggest legal mistakes people make in their divorce cases that I've seen, many of which cannot be fixed or undone after they've happened. Please read and take heed.
1. Agreeing to pay indefinite spousal support without a modification mechanism.
This is by far the most common mistake I see that people have made for which there is absolutely nothing I can do to fix it. I deal with many people who understand that, when things change, child support can be modified, even when the child support is fixed by a signed agreement. What many people don't realize, however, is that the same is not true of spousal support.
The Virginia Code contains a provision stating that when two parties to a divorce sign a spousal support agreement, the court is prohibited from ordering anything contrary to that agreement. As a result, any spousal support agreement you sign is permanently binding on the court. This means that, unless your agreement itself spells out how and when spousal support can be modified, the spousal support can never be modified without the other side agreeing to that modification.
This is important to remember, because an amount that sounds reasonable for you to pay now may not be so reasonable when you're sick, disabled, retired, laid off, or your spouse suddenly hits the $20 million lotto jackpot - but if you signed a spousal support agreement without a built in modification mechanism, then none of that matters, you're still stuck paying, and if you can't, then you could end up found in contempt of court and find yourself in jail.
This is why I've often told clients that if they are going to pay support indefinitely, they're better off getting that ordered by a court than they are agreeing to it - since court ordered spousal support can be modified. So please, whatever you do, do not sign an agreement that commits you to pay a certain amount of spousal support without a guaranteed end date or a modification mechanism.
2. Agreeing to pay child support for your adult child without a modification mechanism.
Your love and care for your child doesn't end when that child turns 18, so for many parents, there is a gut instinct that says their support shouldn't end then either. So, while Virginia law terminates child support at age 18 (or, if the child is still living at home after turning 18 and is a full time high school student, then the earlier of turning 19 or graduating from high school), many parents agree to support their child past age 18 - with frequent termination dates I see being age 21, 22, or graduation from college.
While this is an admirable choice for non-custodial parents to make, the courts no longer view this support as "child support." Once the child is no longer an age where the court can order support, all the protective mechanisms that kick in for court ordered child support goes away, including the court's power to modify support. As a result, once the child reaches the age where the court can no longer order support, the agreement governs the support. This means that if the child support was ever modified, it automatically reverts back to what it was set at in the agreement, and becomes unmodifiable, much like agreed spousal support.
And, like agreed spousal support, the way around this rule is to build in a modification mechanism into the agreement. The most common one I use is "Upon the child reaching the age of majority, child support shall remain the same as it was for the last payment due prior to the child's majority, and shall be modifiable in the same manner as if the child were still a minor." Include that in the agreement, and you're golden, but otherwise you can end up with some very wacky results.
3. Not taking action to protect marital assets.
I'm always surprised to discover how much people think they know about divorce law vs. how much they actually know. Rarely is this gap greater than it is in the field of post-separation use of marital funds. I've had multiple clients walk in the door saying they discovered their spouse had spent x huge sum of dollars of jointly owned funds since separating, and asking me to get it back. Here's the thing - the Court of Appeals says not so fast.
Under Virginia Law there are two types of post-separation uses of marital funds - proper purposes and waste. When funds are used for proper purposes, the money is gone. When they are wasted, then the person who wasted those funds must reimburse the "marital estate." Note, however, there's no middle ground. There's no "unfair" or "uneven" or "just used for one party's benefit." If money is used for a proper purpose, even if it solely benefits one party, it's gone, and you cannot get it back.
So, what constitutes a "proper purpose"? This is literally everything except what one would reasonably call waste (solely unnecessary expenses). According to the Court of Appeals, "proper purposes" include things like rent, the mortgage, groceries, other living expenses, a child's school tuition (even private school and college tuition), and even paying your own attorneys' fees. The appellate opinions on this are so strong that many attorneys, myself included, will often advise clients with no income or funds of their own to take some of the marital funds before they separate to live off of until a support arrangement can be set up.
There are actions you can take, however, to prevent this from happening. You can get into court pretty quickly to get a judge to freeze marital accounts. Now, if your spouse earns a lot less than you, you might get ordered to pay some support in the meantime, so you have to calculate if that is a risk you are willing to take - but you do need to understand that if you don't take steps to protect your marital assets, they could be taken, and there could be nothing you can do about it once they are gone.
4. Failed to object to an appealable order.
As an attorney who does handle family law appeals, every now and then someone walks in my door to appeal an order they had lost on in the trial court while representing themselves. To date, every single person in this situation who has walked in my door has shown me a final order in which they did not list any objections, and then their time to file a motion to reconsider has passed.
To appeal a case, you must show the Court of Appeals that you objected to the order at the time it was entered in a manner sufficient to allow the trial court to fix its own error before you appeal. This can be done in two ways - either by listing your objection on the order itself, or by filing and getting a ruling on a motion to reconsider. If you fail to object on the order itself, anything you cover in a motion to reconsider which has been denied will generally be accepted by the appellate courts, but remember that once 21 days from entry of the final order have passed, the court loses its jurisdiction to rule on the motion to reconsider, so unless a suspending order is entered, if that time runs out without a ruling on the motion, you're out of luck. As a result, by far the safest bet is objecting on the order itself.
Objecting on the order is fairly easy. With rare exception, you are given the option to "endorse" every order - this is where you sign at the end of the order indicating that you've read it. Above your name, there will likely appear the word "Seen." The simplest way to object is to write in there "Seen and objected to because [list of what you object to and why.]" While saying "Seen and objected to" on its own is not sufficient, it is sufficient, if you have nothing else to add, to say "Seen and objected to for the reasons stated in open court." However, no matter how good your case is for appeal, if you have no objection and no motion to reconsider ruling, you likely have no appeal.
5. Ignoring discovery.
Once when I was about four months in to my current job, I had a potential client walk in the door to ask for representation at his divorce trial a month later. He had been representing himself to that point, so I asked to see discovery. When I dug in, I found he'd never sent discovery requests to the other side (it was now too late), and not only had he failed to respond to their requests, but an order had been entered forbidding him from presenting any evidence at all at trial. Needless to say, at that point, there was little good my representation is going to do.
Discovery is serious and ignoring it has serious consequences. Failing to respond to the other side's discovery requests and get you hit hard with court sanctions. Failing to make discovery requests of your own can leave you with absolutely nothing to go on in court. In short, ignoring discovery is practically just giving away your whole case.
There's not much I can add to this one but this occurs far more often than you think.
Conclusion
If you're getting divorced, get a lawyer. There are far too many legal pitfalls and problems for most people to handle on their own. If you don't, however, please at the very least remember these big mistakes I see all the time. Obviously these aren't the only mistakes I see, but these are perhaps the ones that are the combination of most common and most damaging. If you'd like to consider hiring an attorney to help you avoid these mistakes (or try to fix the ones you've already made), please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up an initial consultation (although I would advise you to review my initial consultation policy first). Our initial consultations are free for up to half an hour!
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