Illustration by Mal Jones
Illustration by Mal Jones

How to Have a Successful Divorce

By Renee Sklarew

The American divorce rate hovers around 40 percent, down from 50 percent in the early 1980s. While it’s true the number of divorces is declining, the reduction is partly due to fewer Americans marrying as well as more people waiting to marry later in life. Since divorce remains a common outcome for many marriages, we asked local experts, “How do you achieve a successful divorce?” This article summarizes their answers and includes real stories from Northern Virginians who agreed to share what they’ve learned. Their recommendations can help you keep legal fees to a minimum and understand the long-term financial effects of divorce. They discuss ways a divorcing couple can promote the mental health of their children and set up harmonious co-parenting arrangements. Lastly, these experts stand ready to support you and your family as you take this opportunity to reinvent yourself and, perhaps down the road, find your true soul mate. So what are the best practices in dissolving a marriage? Read on.

Virginia’s Divorce Laws

Mark* and Ann* have been arguing for five years. They can’t agree on how to discipline their kids, how much money to spend or how often they need to visit her parents. Ann packs up her belongings and their kids and moves into her parents’ home against Mark’s wishes.

In Virginia, there are two primary ways to obtain a “Divorce from the Bond of Matrimony”—fault-based or no fault-based grounds. Fault-based grounds are essentially: desertion, constructive desertion, cruelty and adultery. Desertion is when one spouse, Ann in this case, leaves the family home without the other’s consent and without just cause. If Ann left on account of Mark’s cruel or abusive acts, Mark may in fact have committed cruelty and/or constructive desertion, and Ann would be justified in leaving.

Jacob* hears his wife, Leslie*, is romantically involved with the next-door neighbor but needs more than hearsay to file for divorce. To prove whether Leslie was involved with the neighbor and had committed adultery, Jacob hires a private detective, who locates hotel records showing Leslie and their neighbor spent the night together in the same hotel room and therefore had “the opportunity to commit adultery.”

Adultery is perhaps the oldest and most recognized grounds for divorce. There must be evidence that one spouse has engaged in sexual relations with another person while the couple was married or even separated. Cases of adultery are often proved using texts, emails, eyewitness testimony or photos. In Virginia, adultery is a crime whether it occurs before or after a separation, and to be grounds for divorce, the adultery must have occurred within the five-year period previous to a divorce filing. Adultery can be an absolute bar to spousal support unless the spouse accused of committing adultery can demonstrate it would be unjust for a court to refuse him or her support.

The most common grounds for divorce in Virginia is referred to as no fault, which is a divorce granted to spouses who have lived apart for a certain period with the intent to end the marriage. That period is one year if the couple has children under the age of 18 or six months if the couple has no children under 18 and has settled all of their custody and property issues by a written agreement. When there are property disputes, and at least one party requests it, courts in Virginia set a value, classify and then equally distribute marital property. At the same time, courts will often determine whether spousal support, or alimony, and/or child support should be awarded to a requesting spouse.

*These names have been changed to honor their privacy. To understand and have access to specific Virginia laws regarding divorce, you should consult an attorney. This information was reviewed by Gerald Curran of Curran Moher Weis in Fairfax.

I Need a Lawyer

After reading about divorce law, you’re probably thinking you definitely need a lawyer; this stuff can be complicated. Fortunately, there are award-winning attorneys who know these laws and have highly regarded practices in Northern Virginia.

One of those attorneys is Julie Day, a Super Lawyer and partner at Culin, Sharp, Autry & Day, a family law firm in Fairfax. Day says her initial consult will cost a spouse seeking a divorce her legal fee of $425 per hour. Her representation costs on average about $15,000 depending on the issues—such as whether there is a family business or if children are involved. Legal fees can exceed $30,000 per couple. “This is not an inexpensive process,” she notes. “With divorce, the devil is in the details, so you need to develop your facts up front and then decide what is best—to mediate or litigate.”

Gerald Curran is one of the Ten Leaders in Northern Virginia Matrimonial and Divorce Law, and his firm, Curran Moher Weis, was ranked among U.S. News and World Report’s Best Law Firms in 2015. Curran recommends preparing detailed notes before you meet with your lawyer. These notes should describe specifically why you think your marriage is likely to end and should provide a good picture of your financial life including your debts, anticipated income, whether you plan to relocate and the genesis of your assets (where the money came from to put a down payment on your house, etc.).

Curran represents an equal number of men and women, and his clients’ reasons for divorce vary. “In my experience, people get divorced for all sorts of reasons, but ultimately, they are unhappy with their situation,” he says. During the initial consult, Curran listens to the client’s story then discusses children and the couple’s assets and gathers a general feel for what the case might require.

What sets Northern Virginia apart from other jurisdictions, Curran explains, is a “clash of cultures” between laws established by the commonwealth of Virginia, which is a conservative jurisdiction, and Northern Virginia, which is a more progressive community. For this reason, judges in different parts of the state might differ in their acceptance of what constitutes adultery, for example.

Al Bonin is one of Northern Virginia’s top lawyers. He has practiced family law for more than 30 years. Before moving to Northern Virginia, Bonin lived in Colorado, where divorce laws were quite different. Bonin is currently advocating for rewriting the terminology used to describe custodial relationships between parents and children. In Virginia Lawyers Weekly, Bonin asserts that the commonwealth should change the term “visitation” to “parenting time.” He writes: “The compelling force behind changing the law is a desire to remove a sense of ownership associated with the word custody. This change represents an effort to encourage parents to focus on their parenting duties, rather than viewing their children as property that can be won or lost.” Bonin believes that this change in semantics could turn custody battles into discussions that focus on what is best for the children rather than clashes for power.

Since Bonin has been at ShounBach, 90 percent of his cases have settled out of court. He believes it’s much better to avoid court and come up with mutually agreeable resolutions. “When I go to court, the judge decides,” he explains. “A good attorney is one who can negotiate, who fights for the best possible solution.” The waiting time is one reason why court cases are so expensive. In Virginia, couples with children have to wait a year to file for divorce, so while they’re separated, they may need two houses, or they may have to wait a year in the same house. “If you want to be the primary caretaker, you need to stay in the home. If you can’t get your spouse to leave, then you may have to continue to live with them as separated in the same home,” says Bonin. “In some other states you don’t have to wait a year. However, regardless of the waiting period, if you have children and want your case resolved, my advice is to see an attorney as soon as you’re considering divorce so you can get the case settled.”

What Are My Options?

Most couples contact a family practice attorney automatically without knowing their options. Melissa and her ex-husband, a couple from McLean, started the divorce process by hiring their own lawyers. The battle over their rental properties, time with their children, finances and their own businesses led to some heated, unproductive exchanges. “During the two years of negotiations, the situation spun out of control. We didn’t think we had a lot to argue about, but the process turned our lives upside down,” says Melissa. “I was so stressed. I didn’t know it could be much more civil.” Eventually, Melissa’s ex-husband found co-mediators, attorneys Rick Schapira, of Colin Mediation Group, and Ellice Halpern, with Little Falls Mediation.

Melissa discovered that she felt more comfortable being in the same room with her husband and discussing their issues with two neutral parties. “They kept two hardheaded people on task and focused. When we were being counterproductive, they kept us calm and on topic,” Melissa explains. “We weren’t buddies, and we still had lawyers involved, but this time we made the agreements in language we chose. If we had gone to mediators from the start, we would have been done in two months at a fraction of the cost.”

Melissa says the collaborative work they did has helped them co-parent more successfully: “Now things are good. We socialize [and] attend our kids’ school events. We got a chance to talk and be heard, ask for what was important to us and fight for what we wanted amongst ourselves. I’m can’t say enough about how much we appreciate [our mediators].”

Collaborative divorce is an option for couples seeking long-term solutions and minimizing disruptions for their kids. Bonin says in collaborative cases, spouses create their own team of experts that sit down together to work out the issues. “Every time we meet, both lawyers and their clients are present, and our goal is to make decisions for the family,” he says.

Lawyers often bring in certified financial planners like Stan Corey, managing director of United Capital Financial Life Management. For 25 years, Corey has participated in collaborative divorces; his role is to determine what a divorce agreement will mean for each spouse financially, both now and in the future. “Unlike marriage, your divorce lasts forever. Don’t sign anything if you don’t know what it means,” Corey warns. “A year later, if you realize you made a mistake

[or] that there’s a problem, there’s not much you can do about it. You can’t get a do-over in divorce.” Corey’s new book, “The Divorce Dance,” chronicles steps taken by a divorcing couple while analyzing nearly every aspect of divorce, including selecting an attorney, negotiating property and working out issues of custody and support.

Mental health professionals and specialists in child development may also participate in collaborative divorce proceedings. “We might call in a child specialist to ask children how they’re feeling [or] find out if they want input into their future. The specialist then reports back to the team,” Bonin says. The advantage of collaborative divorce is it gives clients more tools. In the beginning there are a lot of players, but as the team moves forward, the process becomes more streamlined. He adds that in certain cases, it doesn’t matter what approach a lawyer takes. “Some clients are not going to settle,” he says.

Leaving Out the Lawyers

When Kathleen and Kevin Kinsolving decided to separate, they did not want to hire an expensive lawyer, especially because their reasons for divorce were not especially emotional: “I just realized that we wanted to make life better, and to do that, we had to break up.” Before the divorce, the couple was fighting in front of their son. “He couldn’t survive with all that tension,” Kathleen explains.

The Kinsolvings heard about mediation from a friend and contacted Virginia Colin, who has a Ph.D. in family mediation and is the director of The Colin Mediation Group. Colin answered all their questions and had them complete a divorce packet and deliver it to the Fairfax County courthouse. Ever since the divorce, Kathleen says their family life has been better. “There’s friendliness. We get along, although there are still things we disagree on,” she says. “I had a feeling we would be good co-parents, and we operate much better now than we did in our marriage.” Their son lives full-time with Kathleen, but Kevin takes him to school every day.

The Colin Mediation Group uses a conflict resolution approach to divorce. Usually both spouses meet in one room with their mediator, who facilitates subjects that are difficult for them to discuss. “Decision-making can be a cooperative process,” Colin says. Her goal is to have the couple negotiate constructively. However, some clients are too angry to be together, so Colin uses shuttle mediation: “I have carried proposals back and forth, leaving the clients’ rage out of the discussion,” she says. Colin recently published a book, “The Guide to Low Cost Divorce in Virginia,” that answers many questions about mediation, and she hosts an Internet radio show called “Family Matters.”

According to Colin, mediation is faster, less expensive and less distressing than litigation. It leaves the spouses in control of the decisions rather than giving power to the court. When what would be best for the child is in dispute, mediators sometimes refer clients to a child or family therapist for guidance. “The therapist does an evaluation and makes recommendations. We don’t want the children to have to choose between parents,” she says. The costs of mediation vary, but the hourly rate for most of the mediators in Colin’s group is $250. Her group also offers a flat fee plan: $2,000 for up to 10 hours of mediation. If a case requires so few hours that the cost would be less than $2,000 at the standard hourly rate, the group refunds the difference. “One mediator costs much less than hiring two attorneys,” Colin reiterates.

(December 2015)

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